[Federal Register Volume 73, Number 10 (Tuesday, January 15, 2008)]
[Proposed Rules]
[Pages 2437-2440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-598]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 27

[WT Docket No. 07-293, IB Docket No. 95-91; FCC 07-215]


The Operation of Wireless Communications Services in the 2.3 GHz 
Band; Establishment of Rules and Policies for the Digital Audio Radio 
Satellite Service in the 2310-2360 MHz Frequency Band

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Communications Commission (FCC) seeks comment on 
service rules for the Wireless Communications Service (WCS) and for 
terrestrial repeaters used in conjunction with the Satellite Digital 
Audio Radio Service (SDARS). The intended purpose of this proceeding is 
to determine whether the Commission can develop adequate limits on out-
of-band emissions for these two services that would permit them coexist 
in adjacent frequency bands.

DATES: Comments are due on or before February 14, 2008 and reply 
comments are due on or before March 17, 2008.

ADDRESSES: You may submit comment, identified by WT Docket No. 07-293 
and IB Docket No. 95-91, 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.
     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 detail instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Steven Spaeth (202) 418-1539, or 
Stephen Duall, (202) 418-1103, Satellite Division, International 
Bureau, Federal Communications Commission, Washington, DC 20554.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in WT Docket No. 07-293 and Second 
Further Notice of Proposed Rulemaking in IB Docket No. 95-91, adopted 
December 17, 2007 and released on December 18, 2007. The full text of 
the Notice of Proposed Rulemaking is available for public inspection 
and copying during regular business hours at the FCC Reference 
Information Center, Portals II, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554. This document may also be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc., 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 
telephone (202) 488-5300, facsimile (202) 488-5563, or via e-mail 
[email protected].
    The NPRM does not contain any proposed new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995, 
Public Law 104-13. In addition, the NPRM does not contain any proposed 
new or modified ``information collection burden for small business 
concerns with fewer than 25 employees'' subject to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Summary of Notice of Proposed Rulemaking

    SDARS licensees operate in the 2320-2345 MHz band. This band is 
divided evenly between the two SDARS licensees, Sirius (2320-2332.5 
MHz) and XM (2332.5-2345 MHz). The WCS service occupies frequencies on 
either side of the SDARS allocation and consists of six blocks of five 
megahertz each in the 2305-2320 MHz and 2345-2360 MHz bands.
    The Commission has previously invited comment on service rules for 
SDARS terrestrial repeaters, used in conjunction with the SDARS 
operators' satellite systems in urban canyons and other areas where 
satellite signal reception is difficult. In this proceeding, the 
Commission seeks to update that record, and to invite comment on WCS 
service rules, that would allow both services to coexist in adjacent 
frequency bands.
    First, the Commission invites comment on power limits for SDARS 
terrestrial repeaters and WCS service transmitters, to limit the 
potential for harmful interference resulting from out-of-band 
emissions. One proposal is an average ``ground-level emission limit'' 
of -44 dBm, which would be applicable

[[Page 2438]]

to both SDARS and WCS stations. Another proposal is an EIRP limit of 2 
kW, based on peak rather than average power, and a 6 dB peak-to-average 
ratio. The Commission invites parties to suggest other proposals.
    Second, the Commission seeks comment on whether it is necessary to 
restrict the collocation of SDARS and WCS stations, either with 
stations within the same service or with stations of the other service.
    Third, the Commission invites commenters to recommend coordination 
and recordkeeping requirements.
    Fourth, the NPRM notes that the Commission has authorized several 
SDARS terrestrial repeaters granted pursuant to Special Temporary 
Authority (STA). The SDARS licensees support grandfathering those 
repeaters, so that those existing repeaters will not be required to 
comply with any rules adopted in this proceeding. The WCS licensees 
propose requiring existing SDARS terrestrial repeaters to come into 
compliance with any rules adopted in this proceeding within a year. The 
Commission asks commenters to discuss whether we should adopt the one-
year transition advocated by the WCS Coalition, apply a different 
transition period, or permit SDARS repeaters to continue existing 
operations until a request is made by a WCS licensee for the SDARS 
licensee to come into compliance with final rules.
    Fifth, the NPRM seeks comment on several miscellaneous issues. For 
example, parties are invited to discuss whether SDARS operators should 
be required to comply with international agreements as a condition on 
any SDARS terrestrial repeater license. The NPRM also considers whether 
to adopt revision to the radiation hazard rules for SDARS terrestrial 
repeaters. The NPRM further considers allowing blanket licensing of 
SDARS terrestrial repeaters.
    Finally, the NPRM solicits comments on a number of possible 
restrictions on the operation of SDARS terrestrial repeaters. One such 
possible restriction could be to prohibit operation of SDARS 
terrestrial repeaters except in conjunction with SDARS satellites, both 
in the Continental United States, and in Alaska and Hawaii. The NPRM 
also seeks comment on requiring SDARS terrestrial repeaters to use the 
same spectrum as their associated satellites. Finally, the NPRM invites 
comment on prohibiting use of repeaters to retransmit the regional spot 
beams of SDARS satellites, and on prohibiting use of repeaters to 
transmit original programming.
    Initial Regulatory Flexibility Analysis: With respect to WCS 
licensees subject to part 27 of the Commission's rules, 47 CFR part 27, 
as required by the Regulatory Flexibility Act of 1980, as amended 
(RFA),\1\ the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in the NPRM. Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments on the NPRM provided above. The 
Commission will send a copy of the NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration 
(SBA).\2\ In addition, the NPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
    \2\ See 5 U.S.C. 603(a).
    \3\ See 5 U.S.C. 603(a).
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A. Need for, and Objectives of, the Proposed Rules

    The primary objective of this proceeding is to consider changes to 
the rules governing Wireless Communications Service (WCS) which may be 
necessary to facilitate the coexistence of those licensees with 
licensees in the SDARS and satellite digital audio radio service 
(SDARS). Such rule changes are needed because SDARS terrestrial 
repeaters and WCS operate in adjacent frequency bands. SDARS licensees 
rely on terrestrial repeaters to provide a nationwide service. Thus, 
without appropriate service rules for WCS and SDARS operations, the 
out-of-band emissions caused by each service could cause harmful 
interference into the other, which in turn would limit the development 
of these services and thereby be detrimental to the public interest.
    The NPRM is intended to refresh the record on any necessary 
regulatory requirements that would allow SDARS terrestrial repeaters 
and WCS operation to coexist in adjacent bands. Specifically, the NPRM 
specifically invites comments on two options for power and emission 
limits for WCS operations and SDARS repeaters, including a peak ground-
level emission limit of -44 dBm, or an average EIRP limit of two 
kilowatts (kW) EIRP, with a 6 dB peak-to-average ratio.\4\
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    \4\ These proposals are discussed in more detail in Section 
III.A. of the NPRM.
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    In the NPRM, the Commission discusses recordkeeping and 
coordination proposals to ensure towers are deployed in a fashion to 
avoid interference. In particular, the Commission is considering 
whether to adopt a proposal to require licensees to provide notice to 
all licensed radio stations potentially affected by SDARS repeater and 
WCS station deployments.

B. Legal Basis for Proposed Rules

    The proposed action is authorized under sections 4(i), 303(r), and 
403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
303(r), and 403.

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 rules 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.'' \5\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\6\ 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).\7\ A small organization is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' \8\ Below, we further 
describe and estimate the number of small entity licensees and 
regulatees that may be affected by the rules changes explored in the 
NPRM.
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    \5\ See 5 U.S.C. 601(6).
    \6\ See 5 U.S.C. 601(3) (incorporating by reference the 
definition of ``small business concern'' in 15 U.S.C. 632). Pursuant 
to the RFA, the statutory definition of a small business applies 
unless an agency, after consultation with the Office of Advocacy of 
the Small Business Administration and after opportunity for public 
comment, establishes one or more definitions which are appropriate 
to the activities of the agency and publishes such definition(s) in 
the Federal Register.
    \7\ See Small Business Act, 5 U.S.C. 632 (1996).
    \8\ See 5 U.S.C. 601(4).
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    WCS Licensees. Wireless Communication Services have flexible rules 
that allow licensees to either operate commercial fixed or mobile radio 
services or use the spectrum for private use. The SBA rules establish a 
size standard for ``Wireless Telecommunications Carriers,'' which 
encompasses business entities engaged

[[Page 2439]]

in radiotelephone communications employing no more that 1,500 
persons.\9\ There are currently 158 active WCS licenses held by 13 
licensees. Of these, 6 licensees qualify as small entities and hold a 
total of 32 licenses.
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    \9\ See 13 CFR 121.201, NAICS code 517110.
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    RF Equipment Manufacturers. 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.'' \10\ 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.\11\ According to Census Bureau data for 2002, 
there were a total of 1,041 establishments in this category that 
operated for the entire year.\12\ Of this total, 1,010 had employment 
of under 500, and an additional 13 had employment of 500 to 999.\13\ 
Thus, under this size standard, the majority of firms can be considered 
small.
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    \10\ U.S. Census Bureau, 2002 NAICS Definitions, ``334220 Radio 
and Television Broadcasting and Wireless Communications Equipment 
Manufacturing''; http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342.
    \11\ See 13 CFR 121.201, NAICS code 334220.
    \12\ U.S. Census Bureau, American FactFinder, 2002 Economic 
Census, Industry Series, Industry Statistics by Employment Size, 
NAICS code 334220 (released May 26, 2005); http://factfinder.census.gov. The number of ``establishments'' is a less 
helpful indicator of small business prevalence in this context than 
would be the number of ``firms'' or ``companies,'' because the 
latter take into account the concept of common ownership or control. 
Any single physical location for an entity is an establishment, even 
though that location may be owned by a different establishment. 
Thus, the numbers given may reflect inflated numbers of businesses 
in this category, including the numbers of small businesses. In this 
category, the Census breaks out data for firms or companies only to 
give the total number of such entities for 2002, which was 929.
    \13\ Id. An additional 18 establishments had employment of 1,000 
or more.
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    There are no specific reporting or recordkeeping requirements 
proposed in the NPRM, other than the recordkeeping and coordination 
requirements discussed in Section A, supra.

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

    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: (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.\14\
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    \14\ See 5 U.S.C. 603(c).
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    As stated in Section A, supra, the NPRM specifically invites 
comments on two options for power and emission limits for WCS 
operations and SDARS repeaters, including a peak ground-level emission 
limit of -44 dBm, or an average EIRP limit of two kilowatts (kW) EIRP, 
with a 6 dB peak-to-average ratio. The NPRM also invites interested 
parties to suggest alternative proposals.
    At this time, the Commission has not excluded any alternative 
proposal concerning ground-level emission limits and average EIRP 
limits from its consideration, but it would do so in this proceeding if 
the record indicates that a particular proposal would have a 
significant and unjustifiable adverse economic impact on small 
entities.
    However, the Commission has also invited interested parties to 
propose any other alternative form of coordination if it would be more 
efficient or effective. However, the Commission will not consider any 
alternative proposal that would have a significant and unjustifiable 
adverse economic impact on small entities.
    In the NPRM, the Commission discusses recordkeeping and 
coordination proposals to ensure towers are deployed in a fashion to 
avoid interference. In particular, the Commission is considering a 
proposal to require licensees to provide notice to all licensed radio 
stations potentially affected by SDARS repeater and WCS station 
deployments. However, as noted supra in Section A, the Commission has 
also invited interested parties to propose any other alternative form 
of coordination if it would be more efficient or effective. However, 
the Commission will not consider any alternative that would have a 
significant and unjustifiable adverse economic impact on small 
entities.
    In the NPRM, the Commission seeks comment on grandfathering and 
transition proposals for existing SDARS repeaters. One proposal is to 
grandfather all existing SDARS terrestrial repeaters, thereby exempting 
those repeaters from any out-of-band power limits adopted in this 
rulemaking proceeding. Another is to require the operators of those 
repeaters to come into compliance with any such limits within a year 
from the adoption of such rules. The Commission invites comments on 
both of these grandfathering-related and transition-related proposals, 
and invites commenters to recommend other transition periods. The 
Commission solicits any alternative proposals that would not incur 
significant and unjustifiable adverse impact on small entities.

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

    None.
    Initial Regulatory Flexibility Certification: With respect to SDARS 
licensees subject to part 25 of the Commission's rules, 47 CFR part 25, 
the Regulatory Flexibility Act (RFA) \15\ 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.'' \16\ The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \17\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\18\ 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

[[Page 2440]]

additional criteria established by the Small Business Administration 
(SBA).\19\
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    \15\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. No. 104-121, 110 Stat. 857 (1996).
    \16\ See 5 U.S.C. 605(b).
    \17\ 5 U.S.C. 601(6).
    \18\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of `` small business concern'' in Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \19\ 15 U.S.C. 632.
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    With respect to the DARS licensees, only two operators hold 
licenses to provide SDARS service, XM and Sirius. Both of these 
licensees are dominant in their field and neither qualify as small 
entities. SDARS provides nationally distributed subscription radio 
service, which requires a great investment of capital for operation. 
Because SDARS service requires significant capital, we believe it is 
unlikely that a small entity as defined by the Small Business 
Administration would have the financial wherewithal to become an SDARS 
licensee.\20\
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    \20\ The small business size standard for the census category, 
``Radio Networks,'' which includes radio satellite broadcasting is 
$6.5 million or less in receipts, per year. See 13 CFR 121.201, 
NAICS code 515111.
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    The Commission therefore certifies, pursuant to the RFA, that the 
proposals in the Second Further Notice in IB Docket No. 95-91, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities. If commenters believe that the proposals 
discussed in the NPRM require additional RFA analysis, they should 
include a discussion of these issues in their comments and additionally 
label them as RFA comments. The Commission will send a copy of the 
NPRM, including a copy of this initial certification, to the Chief 
Counsel for Advocacy of the SBA. In addition, a copy of the NPRM and 
this initial certification will be published in the Federal 
Register.\21\
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    \21\ See 5 U.S.C. 605(b).
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Ordering Clauses

    Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 
303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 
303(r), 303(y), 308, the Second Further Notice of Proposed Rulemaking 
in IB Docket No. 95-91 and Notice of Proposed Rulemaking in WT Docket 
No. 07-293 is adopted.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center shall send a 
copy of the Second Further Notice of Proposed Rulemaking in IB Docket 
No. 95-91 and Notice of Proposed Rulemaking in WT Docket No. 07-293, 
including the Initial Regulatory Flexibility Certification and Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration, in accordance with section 603(a) of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. (1981).

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
 [FR Doc. E8-598 Filed 1-14-08; 8:45 am]
BILLING CODE 6712-01-P