[Federal Register Volume 71, Number 183 (Thursday, September 21, 2006)]
[Proposed Rules]
[Pages 55149-55156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7912]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 27, and 90

[WT Docket Nos. 06-169, 96-86; FCC 06-133]


Revisions to Upper 700 MHz Guard Band Licenses; Development of 
Operational, Technical and Spectrum Requirements for Meeting Federal, 
State and Local Public Safety Communications Requirements Through the 
Year 2010

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on possible changes to its rules governing 
existing and prospective Upper 700 MHz Guard Bands licensees as well as 
possible revision to its Upper 700 MHz band plan in order to promote 
the most efficient and effective use of the spectrum. Specifically, the 
Commission requests comment on whether to extend the Commission's 
Secondary Markets spectrum leasing policies to the Guard Bands, whether 
to increase band manager flexibility for incumbents and prospective 
licensees; whether to eliminate the prohibition on deploying cellular 
architectures in the Guard

[[Page 55150]]

Bands; and whether to change the current Adjacent Channel Power (ACP) 
limits in the Guard Bands. Further, the Commission seeks comment on 
whether reclaimed spectrum (42 Guard Bands licenses that were returned 
from Nextel) should be re-licensed as commercial spectrum, or 
reallocated for critical infrastructure industries or public safety 
entities. Finally, the Commission seeks comment on proposals to modify 
the existing Upper 700 MHz band plan with respect to the Guard Bands, 
or to preserve the existing band plan.

DATES: Comments are due on or before October 23, 2006 and reply 
comments are due on or before November 6, 2006.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., TW-
A325, Washington, DC 20554. See SUPPLEMENTARY INFORMATION for filing 
instructions.

FOR FURTHER INFORMATION CONTACT: Paul Moon of the Mobility Division, 
Wireless Telecommunications Bureau, at (202) 418-1793, e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 06-133, in WT Docket Nos. 06-169 and 96-86, 
adopted on September 6, 2006, and released on September 8, 2006. The 
full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
445 12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the FCC's copy contractor, Best Copy and Printing, Inc., 
445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 
(202) 488-5300, facsimile (202) 488-5563, or via e-mail at 
[email protected]. The full text may also be downloaded at http://www.fcc.gov. Alternative formats are available to persons with 
disabilities (braille, large print, electronic files and audio format) 
by e-mailing [email protected], or calling the Consumer & Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis of the Notice of Proposed Rulemaking

    1. Several factors suggest that the Commission should re-examine 
its spectrum management policies regarding the 700 MHz Guard Bands. In 
the 800 MHz Report and Order in WT Docket No. 02-55, the Commission 
reclaimed 700 MHz Guard Bands B Block licenses surrendered by Nextel 
Communications, Inc., as part of the Commission's 800 MHz re-banding 
process aimed at improving public safety communications. See Improving 
Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, 
Report and Order, 19 FCC Rcd 14969 (2004). Although the Commission 
reclaimed the Nextel licenses in that Order, it deferred the resolution 
of how best to use the surrendered 700 MHz spectrum. Further, the 
Commission's required annual Guard Band Manager reports, as well as 
comments from existing licensees, indicate that the 700 MHz Guard Bands 
spectrum is under-utilized. Finally, Congress recently created greater 
certainty regarding the availability of unencumbered 700 MHz spectrum 
for wireless commercial and public safety licensees--including the 
Guard Bands--by establishing a ``hard date'' of February 17, 2009, by 
which time incumbent analog broadcasters must vacate the spectrum. See 
Deficit Reduction Act of 2005, Public Law 109-171, 120 Stat. 4 (2006) 
(``DTV Act''). As set forth in detail below, the Commission seeks 
comment on proposed uses of the reclaimed spectrum, as well as possible 
revisions to service rules and band plan that would enable the highest 
and best use of this service.
    2. The Commission seeks comment on proposed revisions to service 
and technical rules that could promote greater operational, technical 
and regulatory flexibility for the 700 MHz Guard Bands service 
generally. The NPRM seeks comment on whether the Commission should 
continue to apply the band manager rules for purposes of any re-auction 
of the former Nextel spectrum, or whether it would be more appropriate 
to eliminate ``band manager only'' eligibility restrictions and extend 
the Commission's current Secondary Markets spectrum leasing policies to 
this spectrum. The Commission requests comment on whether it should 
consider making both regulatory options available to bidders in the 
event the reclaimed Nextel spectrum is re-auctioned. For that matter, 
the Commission asks commenters to address whether it remains necessary 
in the public interest to permit only band managers to be licensed in 
the 700 MHz Guard Bands, which requires leasing to third parties to 
guarantee spectrum access through negotiated spectrum use agreements, 
while prohibiting the band manager from offering service or using the 
spectrum for its internal purposes. The Commission also seeks comment 
on an alternative approach involving relaxation of certain band manager 
restrictions (e.g., leasing to affiliates) while retaining the overall 
concept. Further, the NPRM seeks comment on whether the Commission 
should modify its rules pertaining to incumbent 700 MHz Guard Bands 
licensees in the event the Commission determines that the band manager 
concept should not be applied to any re-licensing of the Nextel 
returned spectrum.
    3. In addition to seeking public comment regarding eligibility and 
use restrictions, the Commission also requests comment on whether it is 
appropriate to remove or modify certain technical rules that were 
originally put in place to minimize interference to public safety 
operations. For example, the NPRM seeks comment on whether the 
restriction on cellular architecture in the Guard Bands should be 
maintained, eliminated or more clearly defined. The NPRM requests 
comment on a proposal that advocates the removal of the Commission's 
cellular architecture prohibition in favor of a power flux density 
(PFD) limit used in conjunction with improved receiver technology. 
Alternatively, the Commission also seeks comment on whether it should 
reduce the 1 kilowatt maximum Effective Radiated Power (ERP) limit for 
those 700 MHz Guard Band base stations implemented in a cellular 
architecture, either applied independently or in conjunction with a PFD 
limit as a means of mitigating interference to public safety 
operations. Further, in order to determine the possible impact of 
removing or modifying the cellular architecture ban on all affected 
parties (Guard Bands licensees as well as public safety entities), the 
Commission seeks comment on the feasibility of completing the required 
coordination with public safety operations of the numerous sites 
involved in a cellular architecture.
    4. The NPRM also requests comment on whether the Commission should 
reconsider the existing out-of-band emission (OOBE) limits used for the 
700 MHz Guard Bands. Specifically, the Commission seeks comment on 
whether it should replace its current use of Adjacent Channel Power 
(ACP) limits with the OOBE limits that apply to the Upper 700 MHz C and 
D Blocks. See 47 CFR 27.53(c)(1) and (2). ACP limits differ from OOBE 
limits in that they require several different power attenuation levels 
at specific points displaced from the center frequency of a channel. 
OOBE limits, on the other hand, require that out-of-band signal power 
be attenuated to ensure that the maximum out-of-band signal power 
maintains an established, constant relation to the transmitter power. 
The Commission also seeks comment on the emission limits necessary to 
protect public safety operations in the event

[[Page 55151]]

broadband operations are permitted in the public safety block, pursuant 
to a separate open proceeding. See Development of Operational, 
Technical and Spectrum Requirements for Meeting Federal, State and 
Local Public Safety Communications Requirements Through the Year 2010, 
Eighth Notice of Proposed Rulemaking, WT Docket Nos. 96-86 and 05-157, 
21 FCC Rcd 3668 (2006). Further, in the event that the Commission 
maintains the current ACP limits and does not apply OOBE limits to the 
Guard Bands, the NPRM asks whether the Commission's rules should be 
modified to account for operations wider than 150 kilohertz, and 
requests that commenters propose attenuation values for band widths 
greater than 150 kilohertz that will maintain adequate protection for 
public safety operations.
    5. Apart from the proposed revisions to service and technical 
rules, the NPRM also requests comment on whether the Commission should 
re-examine the current 700 MHz Guard Bands spectrum plan. The 
Commission requests comment on a proposal submitted by Motorola, Inc. 
and the United Telecommunications Council (Motorola/UTC). The Motorola/
UTC plan proposes that the Commission reallocate one megahertz of the 
Guard Bands B Block for critical infrastructure interoperability and 
retain the remainder of the B Block as a guard band. The Commission 
also seeks comment on alternative proposals filed by existing Guard 
Band Managers, including Access Spectrum, L.L.C., Pegasus Guard Band, 
L.L.C., Columbia Capital Equity Partners III, L.P. and PTPMS II 
Communications, L.L.C. These proposals ask the Commission to reallocate 
the 700 MHz Guard Bands, as well as the adjacent 700 MHz public safety 
spectrum, in order to accommodate broadband operations by both Guard 
Bands licensees and public safety entities. Because each of the 
proposals would require the Commission to reclaim the B Block spectrum, 
the NPRM requests comment on how best to clear the block of existing 
licensees in the event that the Commission concludes that it is in the 
public interest to reconfigure the band plan. The NPRM tentatively 
concludes, however, that it would not be appropriate to adopt any 
proposal that entails a shift in the narrowband channels within the 
public safety band unless two issues--the costs of reprogramming 
existing public safety radios, and international border coordination--
are resolved expeditiously. The NPRM also tentatively concludes that 
any decision to shift the existing Upper 700 MHz band plan in a way 
that affects ``recovered analog spectrum'' within the DTV transition 
would need to be made in time to allow the Commission to conduct the 
auction of recovered spectrum in accordance with the relevant statutory 
requirements.

Procedural Matters

Initial Regulatory Flexibility Analysis

    6. As required by section 603 of the Regulatory Flexibility Act, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities by 
the proposals considered in this document. The text of the IRFA is set 
forth below. Written public comments are requested on this IRFA. 
Comments must be filed in accordance with the same filing deadlines for 
comments on this NPRM, and they should have a separate and distinct 
heading designating them as responses to the IRFA. The Commission will 
send a copy of the NPRM, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration in accordance with 
section 603(a) of the Regulatory Flexibility Act.

Ex Parte Rules--Permit-but-Disclose Proceeding

    7. This is a ``permit-but-disclose'' notice and comment rulemaking 
proceeding in accordance with the Commission's ex parte rules. See 47 
CFR 1.1200, and 1.1206. Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentations must contain 
summaries of the substance of the presentations and not merely a 
listing of the subjects discussed. More than a one- or two-sentence 
description of the views and arguments presented is generally required. 
See 47 CFR 1.1206(b)(2). Other rules pertaining to oral and written 
presentations are set forth in Sec.  1.1206(b) of the Commission's 
rules as well.

Comment Dates

    8. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, and 1.419, interested parties may file comments in 
response to this NPRM no later than on or before 30 days after Federal 
Register publication. Reply comments to these comments may be filed no 
later than on or before 45 days after Federal Register publication. All 
pleadings are to reference WT Docket Nos. 06-169 and 96-86. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS) or by filing paper copies. Parties are strongly encouraged to 
file electronically. See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998).
    9. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Parties 
should transmit one copy of their comments to the dockets in the 
caption of this rulemaking. In completing the transmittal screen, 
commenters should include their full name, U.S. Postal Service mailing 
address, and the applicable dockets or rulemaking number. Parties may 
also submit an electronic comment via Internet e-mail. To get filing 
instructions for e-mail comments, commenters should send and e-mail to 
[email protected] and should include the following words in the body of the 
message, ``get form .'' A sample form and 
directions will be sent in reply.
    10. Parties choosing to file by paper must file an original and 
four copies of each filing in WT Docket Nos. 06-169 and 96-86. Filings 
can be sent by hand or messenger delivery, by commercial overnight 
courier, or by first-class or overnight U.S. Postal Service mail 
(although we continue to experience delays in receiving U.S. Postal 
Service mail). If more than one docket or rulemaking number appears in 
the caption of this proceeding, commenters must submit two additional 
copies for each additional docket or rulemaking number. The 
Commission's mail 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 mail, Express Mail, and Priority Mail should be 
addressed to 445 12th Street, SW., Washington, DC 20554. All filings 
must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission.
    11. Comments submitted on diskette should be on a 3.5-inch diskette 
formatted in an IBM-compatible format using Word for Windows or 
compatible software. The diskette should be clearly labeled with the 
commenter's name, proceedings (including the docket numbers, in this 
case WTB Docket Nos. 06-169 and 96-86), type of pleading

[[Page 55152]]

(comments or reply comments), date of submission, and the name of the 
electronic file on the diskette. The label should also include the 
following phrase: ``Disk Copy--Not an Original.'' Each diskette should 
contain only one party's pleadings, preferably in a single electronic 
file.
    12. All parties must file one copy of each pleading electronically 
or by paper to each of the following: (1) The Commission's duplicating 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile 
(202) 488-5563, or via e-mail at [email protected].
    13. Comments and reply comments and any other filed documents in 
this matter may be obtained from Best Copy and Printing, Inc., in 
person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via 
telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-
mail at [email protected]. The pleadings will be also available for 
public inspection and copying during regular business hours in the FCC 
Reference Information Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554, and through the Commission's Electronic Filing 
System (ECFS) accessible on the Commission's Web site, http://www.fcc.gov.
    14. Commenters who file information that they believe is 
proprietary may request confidential treatment pursuant to Sec.  0.459 
of the Commission's rules. Commenters should file both their original 
comments for which they request confidentiality and redacted comments, 
along with their request for confidential treatment. Commenters should 
not file proprietary information electronically. See Examination of 
Current Policy Concerning the Treatment of Confidential Information 
Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), 
Order on Reconsideration, 14 FCC Rcd 20128 (1999). Even if the 
Commission grants confidential treatment, information that does not 
fall within a specific exemption pursuant to the Freedom of Information 
Act (FOIA) must be publicly disclosed pursuant to an appropriate 
request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission 
may grant requests for confidential treatment either conditionally or 
unconditionally. As such, we note that the Commission has the 
discretion to release information on public interest grounds that does 
fall within the scope of a FOIA exemption.
    15. 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).

Further Information

    16. The World Wide Web addresses/URLs that the Commission gives 
here were correct at the time this document was prepared but may change 
over time. They are included herein in addition to the conventional 
citations as a convenience to readers. The Commission is unable to 
update these URLs after adoption of this NPRM, and readers may find 
some URLs to be out of date as time progresses. The Commission also 
advises readers that the only definitive text of any FCC document is 
the one that is published in the FCC Record. In any case of discrepancy 
between the electronic documents cited here and the FCC Record, the 
version in the FCC Record is definitive.

Initial Paperwork Reduction Act of 1995 Analysis

    17. This NPRM contains proposed new and/or modified information 
collections. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the proposed and/or modified 
information collections contained in this NPRM, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. Comments should 
address: (a) Whether the proposed and/or modified collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment 
on how we might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.''
    18. Written comments by the public on the proposed and/or modified 
information collections are due October 23, 3006. Written comments must 
be submitted by the Office of Management and Budget (OMB) on the 
proposed and/or modified information collections on or before November 
6, 2006. In addition to filing comments with the Secretary, a copy of 
any comments on the proposed and/or modified information collections 
contained herein should be submitted to Judith B. Herman, Federal 
Communications Commission, Room 1-B441, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected], 
and to Allison E. Zaleski, OMB Desk Officer, 10236 NEOB, 725 17th 
Street, NW., Washington, DC 20503, or via the Internet to [email protected].

Initial Regulatory Flexibility Analysis

    19. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 
603, the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) regarding the possible significant economic impact of 
the policies and rules proposed in this NPRM on a substantial number of 
small entities. Written public comments are requested regarding this 
IRFA. Comments must be identified as responses to this IRFA and must be 
filed by the deadlines for comments identified in the NPRM. The 
Commission will send a copy of this NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration. See 5 
U.S.C. 603(a). In addition, this NPRM and IRFA (or summaries thereof) 
will be published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    20. In the 800 MHz Report and Order in WT Docket No. 02-55, the 
Commission reclaimed 700 MHz Guard Bands B Block licenses surrendered 
by Nextel Communications, Inc., as part of the Commission's 800 MHz re-
banding process aimed at improving public safety communications. See 
Improving Public Safety Communications in the 800 MHz Band, WT Docket 
No. 02-55, Report and Order, 19 FCC Rcd 14969 (2004). Although the 
Commission reclaimed the Nextel licenses in that Order, it deferred the 
resolution of how best to use the surrendered 700 MHz spectrum. 
Further, the Commission's required annual Guard Band Manager reports as 
well as comments from existing licensees indicate that the 700 MHz 
Guard Bands spectrum is under-utilized. Also, Congress recently created 
greater certainty regarding the availability of unencumbered 700 MHz 
spectrum for wireless commercial and public safety licensees--including 
the Guard Bands--by establishing a ``hard date'' of February 17, 2009, 
by which time incumbent analog broadcasters

[[Page 55153]]

must vacate the spectrum. See Deficit Reduction Act of 2005, Public Law 
109-171, 120 Stat. 4 (2006) (``DTV Act''). These factors suggest that 
the Commission should re-examine its spectrum management policies 
regarding the 700 MHz Guard Bands. As set forth in detail below, the 
Commission seeks comment on proposed uses of the reclaimed spectrum, as 
well as possible revisions to service rules and band plan that would 
enable the highest and best use of this service.
    21. Band Manager Status. The Commission seeks comment on proposed 
revisions to service and technical rules that could promote greater 
operational, technical and regulatory flexibility for the 700 MHz Guard 
Bands service generally. For example, the NPRM seeks comment on the 
relative merits of the Secondary Markets leasing and band manager 
leasing mechanisms. The NPRM seeks comment on whether the Commission 
should continue to apply the band manager rules for purposes of any re-
auction of the former Nextel spectrum, or whether it would be more 
appropriate to eliminate ``band manager only'' eligibility restrictions 
and extend the Commission's current Secondary Markets spectrum leasing 
policies to this spectrum. The Commission requests comment on whether 
it should consider making both regulatory options available to bidders 
in the event the reclaimed Nextel spectrum is re-auctioned.
    22. The Commission also asks commenters to address whether it 
remains necessary in the public interest to permit only band managers 
to be licensed in the 700 MHz Guard Bands, which requires leasing to 
third parties to guarantee spectrum access through negotiated spectrum 
use agreements, while prohibiting the band manager from offering 
service or using the spectrum for its internal purposes. The Commission 
also seeks comment on an alternative approach involving relaxation of 
certain band manager restrictions while retaining the overall concept. 
For example, the NPRM asks whether the Commission should remove or 
lessen the restriction on leasing to affiliates. Further, the NPRM 
seeks comment on whether the Commission should modify its rules 
pertaining to incumbent 700 MHz Guard Bands licensees in the event the 
Commission determines that the band manager concept should not be 
applied to any re-licensing of the Nextel returned spectrum.
    23. Cellular System Architecture. In addition to seeking public 
comment regarding eligibility and use restrictions, the Commission also 
requests comment on whether it is appropriate to remove or modify 
certain technical rules that were originally put in place to minimize 
interference to public safety operations. For example, the NPRM seeks 
comment on whether the restriction on cellular architecture in the 
Guard Bands should be maintained, eliminated or more clearly defined. 
The Commission seeks comment on whether its ban on the use of cellular 
architecture in the 700 MHz Guard Bands should be removed or revised in 
ways that will provide all Guard Bands licensees, including small 
businesses, with greater operational flexibility yet ensure adequate 
interference protection to public safety operations. The NPRM requests 
comment on a proposal that advocates the removal of the Commission's 
cellular architecture prohibition in favor of a power flux density 
(PFD) limit used in conjunction with improved receiver technology. The 
NPRM asks whether, in the event that the Commission eliminates the 
cellular architecture restriction, the Commission should implement a 
PFD limit as a means to mitigate interference to public safety 
operations. Alternatively, the Commission also seeks comment on whether 
it should reduce the 1 kilowatt maximum Effective Radiated Power (ERP) 
limit for those 700 MHz Guard Band base stations implemented in a 
cellular architecture, either applied independently or in conjunction 
with a PFD limit as a means of mitigating interference to public safety 
operations. Further, in order to determine the possible impact of 
removing or modifying the cellular architecture ban on all affected 
parties (Guard Bands licensees as well as public safety entities), the 
Commission seeks comment on the feasibility of completing the required 
coordination with public safety operations of the numerous sites 
involved in a cellular architecture.
    24. Emission Limits. The NPRM also requests comment on whether the 
Commission should reconsider the existing out-of-band emission (OOBE) 
limits used for the 700 MHz Guard Bands. Specifically, the Commission 
seeks comment on whether it should replace its current use of Adjacent 
Channel Power (ACP) limits with the OOBE limits that apply to the Upper 
700 MHz C and D Blocks. The Commission also asks commenters to provide 
comment on the emission limits necessary to protect public safety 
operations in the event broadband operations are permitted in the 
public safety block. See Development of Operational, Technical and 
Spectrum Requirements for Meeting Federal, State and Local Public 
Safety Communications Requirements Through the Year 2010, Eighth Notice 
of Proposed Rulemaking, WT Docket Nos. 96-86 and 05-157, 21 FCC Rcd 
3668 (2006). Further, in the event that the Commission maintains the 
current ACP limits and does not apply OOBE limits to the Guard Bands, 
the NPRM asks whether the Commission's rules should be modified to 
account for operations wider than 150 kilohertz, and requests that 
commenters propose attenuation values for band widths greater than 150 
kilohertz that will maintain adequate protection for public safety 
operations.
    25. Band Plan Proposals. The NPRM requests comment on whether the 
Commission should re-examine the current 700 MHz Guard Bands spectrum 
plan. The Commission requests comment on a proposal submitted by 
Motorola, Inc. and the United Telecommunications Council (Motorola/
UTC). The Motorola/UTC proposal states that the nation's critical 
infrastructure industries (CII) require wireless communications that 
are reliable, ubiquitous in coverage, and interoperable with public 
safety entities during emergencies, particularly where CII entities are 
among first responders to a disaster or emergency. The Motorola/UTC 
plan proposes that the Commission reallocate one megahertz of the Guard 
Bands B Block for critical infrastructure interoperability and retain 
the remainder of the B Block as a guard band. The Commission also seeks 
comment on alternative proposals alternative proposals filed by 
existing Guard Band Managers, including Access Spectrum, L.L.C., 
Pegasus Guard Band, L.L.C., Columbia Capital Equity Partners III, L.P. 
and PTPMS II Communications, L.L.C. The proposals ask the Commission to 
reallocate the 700 MHz Guard Bands and public safety spectrum in order 
to accommodate broadband operations by Guard Bands licensees as well as 
public safety entities. Because each of the proposals would require the 
Commission to reclaim the B Block spectrum, the NPRM requests comment 
on how best to clear the block of existing licensees in the event that 
the Commission concludes that it is in the public interest to 
reconfigure the band plan. The NPRM tentatively concludes, however, 
that it would not be appropriate to adopt any proposal that entails a 
shift in the narrowband channels within the public safety band unless 
two issues--the costs of reprogramming existing public safety

[[Page 55154]]

radios, and international border coordination--are resolved 
expeditiously. The NPRM also tentatively concludes that any decision to 
shift the existing Upper 700 MHz band plan in a way that affects 
``recovered analog spectrum'' within the DTV transition would need to 
be made in time to allow the Commission to conduct the auction of 
recovered spectrum in accordance with the relevant statutory 
requirements.

Legal Basis

    26. The proposed actions are authorized under sections 1, 2, 4(i), 
5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 
311, 314, 316, 319, 324, 332, 333, 336 and 337 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157, 160, 
201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 
319, 324, 332, 333, 336 and 337.

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

    27. 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. 5 U.S.C. 603(b)(3). The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 601(6). In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act. 5 U.S.C. 601(3) (incorporating 
by reference the definition of ``small-business concern'' in the Small 
Business Act, 15 U.S.C. 632). 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'').
    28. 700 MHz Guard Band Licensees. The term ``small business'' in 
the context of Cellular and Other Wireless Telecommunications Companies 
is defined as companies employing no more than 1,500 persons. An 
auction of 52 Major Economic Area (MEA) licenses commenced on September 
6, 2000, and closed on September 21, 2000. Of the 104 licenses 
auctioned, 96 licenses were sold to nine bidders. Five of the bidders 
were small businesses that won a total of 26 licenses. A second auction 
of 700 MHz Guard Band licenses commenced on February 13, 2001, and 
closed on February 21, 2001. All eight of the licenses auctioned were 
sold to three bidders. One of these bidders was a small business that 
won a total of two licenses.
    29. Governmental Entities. 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.'' 5 U.S.C. 601(5). 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.
    30. Public Safety Radio Licensees. As a general matter, Public 
Safety Radio licensees include police, fire, local government, forestry 
conservation, highway maintenance, and emergency medical services. See 
subparts A and B of part 90 of the Commission's rules, 47 CFR 90.1-
90.22. The SBA rules contain a definition for cellular and other 
wireless telecommunications companies which encompass business entities 
engaged in wireless communications employing no more than 1,500 
persons. See 13 CFR 121.201. According to Census Bureau data for 2002, 
in this category there was a total of 8,863 firms that operated for the 
entire year. Of this total, 401 firms had 100 or more employees, and 
the remainder had fewer than 100 employees. With respect to local 
governments, in particular, since many governmental entities as well as 
private businesses comprise the licensees for these services, we 
include under public safety services the number of government entities 
affected.
    31. Wireless Communications Equipment Manufacturers. The SBA has 
established a small business size standard for radio and television 
broadcasting and wireless communications equipment manufacturing. Under 
the standard, firms are considered small if they have 750 or fewer 
employees. See 13 CFR 121.201. Census Bureau data for 1997 indicates 
that, for that year, there were a total of 1,215 establishments in this 
category. Of those, there were 1,150 that had employment under 500, and 
an additional 37 that had employment of 500 to 999. The Commission 
estimates that the majority of wireless communications equipment 
manufacturers are small businesses. We note, however, that the major 
providers of 700 MHz equipment, Motorola and M/A-COM Private Radio 
Systems, Inc., are not considered small businesses.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    32. This NPRM seeks comment on possible revisions to the 700 MHz 
Guard Bands service rules that may modify reporting, recordkeeping and 
other compliance requirements. The Commission requests comment on 
proposals to apply its Secondary Markets leasing regime to reclaimed 
700 MHz Guard Bands spectrum as well as to existing licensees. 
Application of Secondary Markets leasing to the 700 MHz Guard Bands 
would require a modification of current reporting and recordkeeping 
requirements. Further, as noted, the NPRM seeks comment on whether to 
eliminate its prohibition on cellular architecture in the 700 MHz Guard 
Bands. In light of the numerous sites that are involved in a cellular 
architecture, this proposal could lead to more intensive coordination 
with public safety operations if the ban is lifted.

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

    33. 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. See 5 U.S.C. 603(c).
    34. Generally, the Commission's primary objective in issuing the 
NPRM is to determine the most efficient and effective use of the 
reclaimed Nextel spectrum and the 700 MHz Guard Bands. The Commission 
invites comment on ways in which the Commission can achieve its goal of 
encouraging operational, technical and regulatory flexibility for all 
licensees, including small entities, while at the same time imposing 
minimal burdens on small entities. The Commission seeks comment on the 
effect the various proposals described in the NPRM will have on small 
entities, whether existing or prospective Guard Bands licensees, or 
public safety entities. To assist the Commission in its analysis, 
commenters are asked to provide information

[[Page 55155]]

regarding which entities would be affected by possible revisions to 700 
MHz Guard Band service and technical rules as well as to the 700 MHz 
Guard Bands spectrum band plan as described in this NPRM. In 
particular, the Commission seeks estimates of how many small entities 
might be affected and whether the proposals under consideration would 
be overly burdensome to small entities. The following summarizes 
significant alternatives considered in the NPRM.
    35. Band Manager Status. Under the current rules, the Guard Band 
Manager must lease to third parties to guarantee spectrum access 
through negotiated spectrum use agreements, while the Guard Band 
Manager cannot itself offer service or use the spectrum for its 
internal purposes. Additionally, the Guard Band Manager cannot lease 
its spectrum to more than 49.9 percent of its affiliates in the 
licensed geographic area. These restrictions were created to promote 
the leasing of spectrum to third parties, many of whom would be small 
entities that lack the capacity or need to acquire an entire service 
area. The NPRM seeks comment on the relative merits of the Secondary 
Markets leasing and band manager leasing policies. Noting that certain 
Guard Bands licensees argue that the current band manager rules have 
resulted in the inefficient use of the spectrum, the NPRM asks whether 
the Commission should retain the existing Guard Band Manager rules or 
whether the Commission should apply a different regulatory structure, 
such as the Secondary Market rules, to the Guard Bands spectrum 
generally. Alternatively, the NPRM asks whether the Commission should 
continue to apply the band manager rules for purposes of any re-auction 
of the former Nextel spectrum, or even if existing rules are retained 
for existing licensees. The NPRM also asks whether it should permit 
existing or new licensees to choose among several regulatory options 
for managing the Guard Bands.
    36. The NPRM also seeks comment on an alternative approach 
involving the relaxation of certain band manager eligibility 
restrictions, while retaining the overall existing band manager 
concept. For example, the NPRM ask whether the Commission should remove 
or lessen the restriction that band managers may not lease more than 
49.9 percent of their spectrum in a geographic area to affiliates. 
Alternatively, the Commission asks whether it should change its rules 
to permit a band manager to use its licensed spectrum in some capacity 
exclusively for internal purposes.
    37. Cellular System Architecture. The NPRM seeks comment on whether 
the restriction on cellular architecture in the Guard Bands should be 
removed or modified in order to facilitate the use of broadband 
technology by all Guard Bands licensees, including those qualifying as 
small businesses. The Commission seeks comment on a proposal to lift 
the cellular architecture prohibition and replace it with a power flux 
density (PFD) limit as an alternative means to ensure adequate 
interference protection to public safety operations. The NPRM also 
seeks comment on another option, applied either independently or in 
conjunction with a PFD limit, to reduce the 1 kilowatt maximum ERP 
limit for Guard Bands base stations implemented in a cellular 
architecture. Noting that reducing ERP limits could minimize the area 
of interference surrounding each base station, thereby reducing the 
overall potential for interference to adjacent channel public safety 
mobiles/portables, the Commission seeks comment as to what base station 
ERP limit applied to a Guard Bands system based on a cellular 
architecture would adequately protect public safety systems.
    38. Emission Limits. The NPRM also requests comment on whether the 
Commission should reconsider the existing OOBE limits used for the 700 
MHz Guard Bands. The Commission originally applied the current ACP 
limits to the Guard Bands because it found that the immediate proximity 
of the Guard Bands to the public safety block justifies an application 
of the same emission limit for the Guard Bands as applies for emissions 
from within the public safety block. In the NPRM, the Commission seeks 
comment on the proposal to replace its current use of ACP limits with 
OOBE limits. The Commission also seeks comment on the emission limits 
necessary to protect public safety operations in the event broadband 
operations are permitted in the public safety block. Alternatively, to 
the extent that the Commission determines that the use of ACP limits 
does not sufficiently guard public safety entities against unwanted 
OOBE, the NPRM asks whether the Commission's rules should be modified 
to account for operations wider than 150 kilohertz, and requests that 
commenters provide attenuation values for bandwidths greater than 150 
kilohertz that will maintain adequate protection for public safety 
operations. Finally, the NPRM also considers the relative merits of 
maintaining the status quo.
    39. Band Plan Proposals. The NPRM requests comment on whether the 
Commission should re-examine the current 700 MHz Guard Bands spectrum 
plan, and asks commenters to consider several alternative band plan 
proposals. First, Motorola/UTC requests that the Commission reallocate 
the licenses surrendered by Nextel from the Guard Bands B Block as 
narrowband channels for critical infrastructure industries in support 
of interoperability with public safety entities. Motorola/UTC argue 
that one megahertz of the B Block contiguous with the public safety 
block could carry narrowband channels dedicated to providing critical 
infrastructure entities with the ability to communicate with state and 
local agencies. The NPRM seeks comment on the potential benefit of 
creating a separate class of interoperability channels, and whether the 
proposal should be applied only to the former Nextel spectrum or to all 
Guard Bands licenses.
    40. The NPRM also seeks comment on a proposal requesting that the 
Commission rededicate the relinquished Nextel spectrum for exclusive 
public safety use. The NPRM seeks comment on whether there have been 
any technical or marketplace developments that may alleviate concerns 
that re-designating the spectrum for public safety applications may 
result in increased interference to public safety.
    41. Alternatively, the Commission also seeks comment on various 
proposals from existing Guard Band Managers to revise the Upper 700 MHz 
band plan. A consortium consisting of almost all existing Guard Band 
Managers filed a White Paper proposing three alternative Upper 700 MHz 
band plans with the goal of facilitating broadband communications 
inside the Guard Bands. Subsequently, a new consortium, which includes 
most of the White Paper proponents, filed the Optimization Plan, 
advocating another, more comprehensive band plan proposal that 
implicates the Guard Bands as well as the Upper 700 MHz public safety 
block.
    42. The Optimization Plan proposes, in part, that three megahertz 
from the existing B Block should be allocated to the public safety 
block as additional spectrum for broadband communications, and that the 
remaining Guard Bands spectrum should be consolidated into a new A 
Block. The NPRM seeks comment on whether the public interest (including 
the interests of small entities) would be served by adoption of the 
band plan proposed in the Optimization Plan, and asks for comment on a 
number of ``transition'' issues, including timing and cost 
considerations associated with a band plan shift, how existing B Block 
licenses

[[Page 55156]]

could be reclaimed by the Commission, as well as how a reconfigured and 
enlarged A Block should be licensed, in the event the Commission adopts 
the Optimization Plan.
    43. Further, because the Optimization Plan does not specifically 
disclaim or supercede the preceding White Paper band plan proposals, 
the Commission seeks comment on the White Paper proposals as well. As 
in the case of the Optimization Plan, the White Paper's three proposals 
entail some shift in the position of the commercial spectrum blocks in 
the Upper 700 MHz Band. The White Paper's three band plan proposals 
would increase the existing allocation of one megahertz for the A Block 
up to one-and-a-half or two megahertz. In order to facilitate broadband 
within an enlarged A Block, the White Paper proposals involve either 
eliminating the B Block while adding bandwidth to the A Block and the 
public safety block, or reducing the B Block while adding bandwidth to 
the A Block. The NPRM seeks comment on whether the Commission should 
adopt any of the various White Paper proposals and also requests 
comment on the same transition issues raised by consideration of the 
Optimization Plan. The NPRM seeks comment on similar transition issues, 
including cost, timing and equitable compensation considerations, for 
each of the other alternative proposals as well.

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

    44. None.

Ordering Clauses

    45. Pursuant to sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208, 
214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 
333, 336 and 337 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301, 
302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336 
and 337, this Notice of Proposed Rulemaking is hereby adopted.
    46. Pursuant to applicable procedures set forth in Sec. Sec.  1.415 
and 1.419 of the Commission's rules, 47 CFR 1.415, and 1.419, 
interested parties may file comments on this Notice of Proposed 
Rulemaking on or before 30 days after publication in the Federal 
Register, and reply comments on or before 45 days after publication in 
the Federal Register.
    47. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers.

47 CFR Part 27

    Communications equipment, Radio.

47 CFR Part 90

    Radio, Reporting and recordkeeping requirements.

Federal Communication Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 06-7912 Filed 9-20-06; 8:45 am]
BILLING CODE 6712-01-P