[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
[Proposed Rules]
[Pages 29930-29933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10417]



[[Page 29930]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 06-150; WT Docket No. 06-169; PS Docket No. 06-229; WT 
Docket No. 96-86; DA 07-2197]


Comment Sought on Google Proposals Regarding Service Rules for 
700 MHz Spectrum

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Wireless Telecommunications Bureau seeks 
comments on a proposal recently submitted by Google regarding service 
rules for the 700 MHz spectrum that is to be auctioned. Google requests 
that the Commission clarify the service rules governing the 700 MHz 
bands and declare that the rules allow the use of ``dynamic auction 
mechanisms'' such as real-time auctions and per-device registration 
fees. Google also requests that the Commission posit at least whether 
it would be in the public interest to mandate the use of such 
mechanisms for some, or even all, of the commercial spectrum to be 
auctioned in the 700 MHz bands. The document also seeks comment on 
Google's proposal that the unpaired 6 megahertz E Block (722-728 MHz) 
in the current Lower 700 MHz band plan should be designated primarily 
or exclusively to be used for deployment of broadband communications 
platforms. Finally, the document seeks comment on the Initial 
Regulatory Flexibility Analysis.

DATES: Comments due on or before June 6, 2007 and reply comments are 
due on or before June 13, 2007.

ADDRESSES: You may submit comments, identified by WT Docket No. 06-150; 
WT Docket No. 06-169; PS Docket No. 06-229; WT Docket No. 96-86, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: Include the docket numbers in the subject line of 
the message.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: John Branscome, Spectrum and 
Competition Policy Division, Wireless Telecommunications Bureau, at 
202-418-8205 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Public Notice 
released May 24, 2007, DA 07-2197. Pursuant to Sec. Sec.  1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on or before the date indicated on the first 
page of this document. Comments may be filed using: (1) The 
Commission's Electronic Comment Filing System (ECFS), (2) the Federal 
Government's eRulemaking Portal, or (3) by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

Synopsis of the Public Notice

    On April 27, 2007, the Commission released a Report and Order (72 
FR 27688) and Further Notice of Proposed Rulemaking (72 FR 24238), 
which addresses rules governing wireless licenses in the 698-806 MHz 
Band (herein, the ``700 MHz Band''). This spectrum currently is 
occupied by television broadcasters in TV channels 52-69 and is being 
made available for wireless services, including public safety and 
commercial services, as a result of the digital television (``DTV'') 
transition. On May 21, 2007, Google Inc. (``Google'') filed an ex parte 
letter asking that the Commission seek immediate comment on certain 
proposals regarding the service rules for the 700 MHz Band spectrum 
that is to be auctioned. In the Public Notice, the Wireless 
Telecommunications Bureau seeks comment on those proposals as well as 
any other alternative approaches for conditioning the licenses that 
will be auctioned.
    Google requests that the Commission clarify that the Commission's 
existing rules governing commercial spectrum in the 700 MHz Band 
already allow licensees to utilize ``dynamic auction mechanisms,'' such 
as real-time auctions and per-device registration fees. In Google's 
real-time airwaves auction model, a licensee could bestow the right to 
transmit an amount of power for a unit of time, with the total amount 
of power in any location being limited to a specified cap. According to 
Google, as part of a real-time auction process,

[[Page 29931]]

the communications device itself could become key to the payment 
process. For example, a consumer's price to purchase a device could 
include an airwaves registration fee that would grant the ability to 
gain unlimited use at a specified power level. The Public Notice seeks 
comment broadly on the extent to which the Commission's existing rules 
permit 700 MHz licensees to employ such ``dynamic spectrum management 
techniques.'' To the extent they are not currently permitted, the 
Notice asks whether the Commission should modify any of its rules to 
permit their use.
    Google also requests that the Commission posit at least whether it 
would be in the public interest to mandate the use of such techniques 
for some, or even all, of the commercial spectrum to be auctioned in 
the 700 MHz bands. The Public Notice seeks comment on whether the 
Commission should mandate such an approach, and if so, to what extent.
    The Public Notice also seeks comment on Google's proposal that the 
unpaired 6 megahertz E Block (722-728 MHz) in the current Lower 700 MHz 
band plan should be designated primarily or exclusively to be used for 
deployment of interactive, two-way broadband services; connected to the 
public internet; and used to support innovative software-based 
applications, services and devices.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(the ``RFA''), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (``IRFA'') of the possible significant economic 
impact of the policies and rules proposed in the Public Notice on a 
substantial number of small entities. Written public comments are 
requested on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed by the deadline for comments on the Public 
Notice. The Commission will send a copy of the Public Notice, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (``SBA''). In addition, the Public Notice and IRFA (or 
summaries thereof) will be published in the Federal Register.
    Although Section 213 of the Consolidated Appropriations Act of 2000 
provides that the RFA shall not apply to the rules and competitive 
bidding procedures for frequencies in the 746-806 MHz Band, the 
Commission believes that it would serve the public interest to analyze 
the possible significant economic impact of the proposed policy and 
rule changes in this band on small entities. Accordingly, this IRFA 
contains an analysis of this impact in connection with all spectrum 
that falls within the scope of this Public Notice, including spectrum 
in the 746-806 MHz Band.

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

    The Public Notice seeks comments broadly on a proposal recently 
submitted by Google and on any other alternative approaches for 
conditioning the licenses that will be auctioned in the 700 MHz band. 
Google requests that the Commission clarify the service rules governing 
the 700 MHz bands and declare that the rules allow the use of ``dynamic 
auction'' mechanisms such as real-time auctions and per-device 
registration fees. Google also asks the Commission to consider whether 
it would be in the public interest to mandate such mechanisms for some, 
or even all, of the commercial spectrum to be auctioned in the 700 MHz 
bands. The Public Notice also seeks comment on Google's proposal that 
the unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz 
band plan should be designated primarily or exclusively to be used for 
deployment of broadband communications platforms.

B. Legal Basis

    The legal authority for the actions proposed in this Public Notice 
are contained in 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, 337, 614, 615, and 710 of the Communications Act of 1934, as 
amended, 47 U.S.C. Sec. Sec.  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, 337, 534, 535, and 610.

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

    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. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (``SBA'').
    Small Businesses. Nationwide, there are a total of approximately 
22.4 million small businesses, according to SBA data.
    Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.
    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.'' As of 2002, there were approximately 87,525 
governmental jurisdictions in the United States. This number includes 
38,967 county governments, municipalities, and townships, of which 
37,373 (approximately 95.9%) have populations of fewer than 50,000, and 
of which 1,594 have populations of 50,000 or more. Thus, we estimate 
the number of small governmental jurisdictions overall to be 85,931 or 
fewer.
    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless firms within the two broad economic census 
categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications.'' Under both categories, the SBA deems a wireless 
business to be small if it has 1,500 or fewer employees. For the census 
category of Paging, Census Bureau data for 2002 show that there were 
807 firms in this category that operated for the entire year. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. Thus, under this 
category and associated small business size standard, the majority of 
firms can be considered small. For the census category of Cellular and 
Other Wireless Telecommunications, Census Bureau data for 2002 show 
that there were 1,397 firms in this category that operated for the 
entire year. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, under this second category and size standard, the majority of 
firms can, again, be considered small.
    Under this Public Notice, any of the changes to the Commission's 
rules which may occur as a result of the Public Notice would be limited 
to the 698-806 MHz spectrum band. Since this rulemaking proceeding 
applies to services in that band, this IRFA analyzes the number of 
small entities affected on a service-by-service basis. When identifying 
small entities that could be affected by the Commission's new rules, 
this IRFA provides information

[[Page 29932]]

describing auctions results, including the number of small entities 
that were winning bidders. However, the number of winning bidders that 
qualify as small businesses at the close of an auction does not 
necessarily reflect the total number of small entities currently in a 
particular service. The Commission does not generally require that 
licensees later provide business size information, except in the 
context of an assignment or transfer of control application where 
unjust enrichment issues are implicated. Consequently, to assist the 
Commission in analyzing the total number of potentially affected small 
entities, the Commission requests commenters to estimate the number of 
small entities that may be affected by any rule changes that might 
result from this Public Notice.
    700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, the 
Commission adopted size standards for ``small businesses'' and ``very 
small businesses'' for purposes of determining their eligibility for 
special provisions such as bidding credits and installment payments. A 
small business in this service is an entity that, together with its 
affiliates and controlling principals, has average gross revenues not 
exceeding $40 million for the preceding three years. Additionally, a 
``very small business'' is an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. SBA approval of 
these definitions is not required. 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 these 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.
    Upper 700 MHz Band Licenses. The Commission released a Report and 
Order authorizing service in the Upper 700 MHz band. An auction for 
these licenses, previously scheduled for January 13, 2003, was 
postponed.
    Lower 700 MHz Band Licenses. The Commission adopted criteria for 
defining three groups of small businesses for purposes of determining 
their eligibility for special provisions such as bidding credits. The 
Commission has defined a small business as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years. A 
very small business is defined as an entity that, together with its 
affiliates and controlling principals, has average gross revenues that 
are not more than $15 million for the preceding three years. 
Additionally, the Lower 700 MHz Band has a third category of small 
business status that may be claimed for Metropolitan/Rural Service Area 
(MSA/RSA) licenses. The third category is entrepreneur, which is 
defined as an entity that, together with its affiliates and controlling 
principals, has average gross revenues that are not more than $3 
million for the preceding three years. The SBA has approved these small 
size standards. An auction of 740 licenses (one license in each of the 
734 MSAs/RSAs and one license in each of the six Economic Area 
Groupings (EAGs)) commenced on August 27, 2002, and closed on September 
18, 2002. Of the 740 licenses available for auction, 484 licenses were 
sold to 102 winning bidders. Seventy-two of the winning bidders claimed 
small business, very small business or entrepreneur status and won a 
total of 329 licenses. A second auction commenced on May 28, 2003, and 
closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 
476 CMA licenses. Seventeen winning bidders claimed small or very small 
business status and won sixty licenses, and nine winning bidders 
claimed entrepreneur status and won 154 licenses.
    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. The 
SBA rules contain a small business size standard for cellular and other 
wireless telecommunications companies, which encompasses business 
entities engaged in wireless communications employing no more than 
1,500 persons. According to Census Bureau data for 2002, in this 
category there were 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.
    Wireless Communications Equipment Manufacturers; Radio and 
Television Broadcasting and Wireless Communications Equipment 
Manufacturing. The Census Bureau defines this category as follows: 
``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census Bureau data for 2002, there 
were a total of 1,041 establishments in this category that operated for 
the entire year. Of this total, 1,010 had employment of under 500, and 
an additional 13 had employment of 500 to 999. Thus, under this size 
standard, the majority of firms can be considered small.

D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    Google requests that the Commission clarify that the existing rules 
governing the commercial bands of the 700 MHz spectrum already allow 
licensees to utilize what it describes as ``dynamic spectrum management 
techniques.'' Google provides as examples ``real-time airwaves 
auctions'' and ``device-driven registration.'' According to Google, in 
real-time airwaves auctions, a licensee can bestow the right to 
transmit an amount of power for a unit of time, with the total amount 
of power in any location being limited to a specified cap. With a per-
device registration process, Google states, the communications device 
itself can become a key to the payment process, and that a consumer's 
price to purchase a device could include an airwaves registration fee 
that would grant the ability to gain unlimited use at a specified power 
level. Under its proposal, Google states that a licensee would simply 
purchase spectrum initially in the up-front auction, and then recover 
its costs over time by charging third parties for real-time and place 
use. The Public Notice seeks comment broadly on the extent to which the 
Commission's existing rules permit 700 MHz licensees to employ such 
``dynamic spectrum management techniques,'' and on whether the 
Commission should modify any of its rules to permit their use.
    The Public Notice also seeks comment on Google's request that the 
Commission posit at least whether it would be in the public interest to

[[Page 29933]]

mandate the use of such techniques for some, or even all, of the 
commercial spectrum to be auctioned in the 700 MHz bands.
    The Public Notice also seeks comment on Google's proposal that the 
unpaired 6 MHz E Block (722-728 MHz) in the current Lower 700 MHz band 
plan should be designated primarily or exclusively to be used for 
deployment of interactive, two-way broadband services; connected to the 
public internet; and used to support innovative software-based 
applications, services and devices.

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

    The RFA requires an agency to describe any significant, 
specifically small business, 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 and 
reporting requirements under the rule for such 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 such small 
entities.''
    The Public Notice seeks comment on the relative merits of dynamic 
auction techniques. The Public Notice also seeks comment on whether the 
Commission should designate the unpaired 6 MHz E Block (722-728 MHz) in 
the current Lower 700 MHz band plan primarily or exclusively for 
deployment of broadband communications platforms. To assist the 
Commission in its analysis, commenters are requested to provide 
information regarding how small entities would be affected if the 
Commission were to adopt Google's proposals. Commenters should also 
provide information on alternative approaches to alleviate any 
potential burdens on small entities.

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

    None.

Federal Communications Commission.
James D. Schlichting,
Deputy Chief.
[FR Doc. E7-10417 Filed 5-29-07; 8:45 am]
BILLING CODE 6712-01-P