[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Proposed Rules]
[Pages 40274-40276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16036]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[DA 08-1530; WT Docket No. 02-55]


Public Safety and Homeland Security Bureau Seeks Comment on New 
800 MHz Band Plan for Puerto Rico

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document summarizes the Second Further Notice of Proposed 
Rulemaking (Second FNPRM), which seeks comment on post-reconfiguration 
800 MHz band plans for the Puerto Rico region. The Bureau, by this 
action, affords interested parties an opportunity to submit comments 
and reply comments on proposals for establishing a reconfigured 800 MHz 
band plan in the Puerto Rico region in order to accomplish the 
Commission's goals for band reconfiguration.

DATES: Comments are due on or before August 8, 2008 and reply comments 
are due on or before August 22, 2008.

ADDRESSES: You may submit comments, identified by WT Docket 02-55, 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.
     Mail: Policy Division, Public Safety and Homeland Security 
Bureau, 445 12th Street, SW., Washington, DC 20554.
     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 Evanoff, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-0848.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking, DA 08-1530, released on June 30, 
2008. The complete text of this document is available for inspection 
and copying during normal business hours in 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., 445 
12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 
378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via e-mail at 
http://www.bcpiweb.com. It is also available on the Commission's Web 
site at http://www.fcc.gov.
    1. In a July 2004 Report and Order, the Commission reconfigured the 
800 MHz band to eliminate interference to public safety and other land 
mobile communication systems operating in the band, 69 FR 67823 
(November 22, 2004). In a Second Memorandum Opinion and Order, adopted 
in May 2007, the Commission determined that an alternative band plan 
was appropriate for Puerto Rico due to the unique nature of 800 MHz 
incumbency in the Puerto Rico market compared to other markets 72 FR 
39756 (July 20, 2007). Rather than specify a band plan for Puerto Rico, 
the Commission directed the 800 MHz Transition Administrator (TA) to 
propose an alternative band plan and negotiation timetable for Puerto 
Rico. The Commission stated that the TA's proposal should comply with 
certain

[[Page 40275]]

criteria. The Commission delegated authority to the Public Safety and 
Homeland Security Bureau to approve or modify the proposed band plan 
and timetable, and suspended the rebanding timetable for Puerto Rico 
until a new band plan is adopted. On October 19, 2007, the TA filed the 
requested band plan proposal in this docket (TA Proposal).
    2. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates listed on the first page of this 
summary. All filings related to the Further Notice of Proposed 
Rulemaking should refer to WT Docket No. 02-55. 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 24,121 (1998).

Procedural Matters

A. Initial Regulatory Flexibility Analysis

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

B. Initial Paperwork Reduction Act of 1995 Analysis

    4. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

Initial Regulatory Flexibility Analysis

    5. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), 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 Second Further Notice of Proposed 
Rulemaking (Second FNPRM). 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 first page of the 
Second FNPRM. The Commission will send a copy of the Second FNPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, the Second FNPRM and IRFA 
(or summaries thereof) will be published in the Federal Register.

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

    6. In the Second Further Notice of Proposed Rulemaking (Second 
FNPRM), we consider the 800 MHz Transition Administrator's (TA) 
proposal to reconfigure the band plan for Puerto Rico. Consistent with 
the U.S. Band Plan, all Puerto Rico incumbents in the 806-809/851-854 
MHz (Channel 1-120) band segment would be relocated to comparable 
spectrum in the Interleaved, Expansion, or ESMR Band, depending on 
their eligibility. All NPSPAC licensees would be relocated from their 
821-824/866-869 MHz channel assignments to channel assignments 15 MHz 
downward in the 806-809/851-854 MHz band segment. Under the TA 
Proposal, the Puerto Rico band plan would be the same as the band plan 
for non-border regions of the United States (US Band Plan), except that 
the Expansion Band would be expanded by 0.5 MHz in bandwidth through 
elimination of the lower 0.5 MHz portion of the Guard Band. Under the 
TA Proposal, the ESMR Band in EA 174 would remain in the same channels 
as in the U.S. Band Plan. The TA has determined that there will not be 
sufficient capacity to accommodate fully all ESMR and ESMR-eligible 
licensees in the ESMR Band. The TA Proposal provides that the TA will 
apportion the Puerto Rico ESMR Band (817-824/862-869 MHz) in accordance 
with the provisions set forth by the Commission the 800 MHz Second 
Memorandum Opinion and Order. The TA proposes that all Puerto Rico 
licensees would be subject to a single 90-day mandatory negotiation 
period, after which any licensee that fails to negotiate a Frequency 
Reconfiguration Agreement with Sprint Nextel would enter TA-sponsored 
mediation. The reconfiguration of the 800 MHz band in the Puerto Rico 
is in the public interest because it will allow the Commission to 
eliminate interference in these regions to public safety and other land 
mobile communication systems. Interference is eliminated by 
separating--to the greatest extent possible--public safety and other 
non-cellular licensees from licensees that employ cellular technology 
in the 800 MHz band. In that connection, it is our intent to proceed 
with rebanding in Puerto Rico as quickly as is feasible consistent with 
the Commission's goals in this proceeding.

B. Legal Basis

    7. The legal basis for any action that may be taken pursuant to 
this Notice is contained in Sections 4(i), 303(f) and (r), and 332 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f) 
and (r), and 332.

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

    8. 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. 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).
    9. A small organization is generally any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field. Nationwide, as of 1992, there were approximately 275,801 small 
organizations. A ``small governmental jurisdiction'' generally means 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than 
50,000.'' As of 1992, there were approximately 85,006 such 
jurisdictions in the United States. This number included 38,978 
counties, cities, and towns; of these, 37,566, or ninety-six percent, 
have populations of fewer than 50,000. The Census Bureau estimates that 
this ratio is approximately accurate for all governmental entities. 
Thus, of the 85,006 governmental entities, we estimate that that 81,600 
(ninety-one percent) are small entities. Below, we further describe and 
estimate the number of small entities--applicants

[[Page 40276]]

and licensees--that may be affected by the proposals, if adopted, in 
the Second FNPRM.
    10. Public Safety Radio Licensees. Public safety licensees who 
operate 800 MHz systems in the Puerto Rico region would be required to 
relocate their station facilities according to the band plan proposed 
in the Second FNPRM. As indicated above, all governmental entities with 
populations of less than 50,000 fall within the definition of a small 
entity.
    11. Business, I/LT, and SMR licensees. Business and Industrial Land 
Transportation (B/ILT) and Special Mobile Radio (SMR) licensees who 
operate 800 MHz systems in the Puerto Rico region would be required to 
relocate their station facilities according to the band plans proposed 
in the Second FNPRM. Neither the Commission nor the SBA has developed a 
definition of small businesses directed specifically toward these 
licensees.
    12. ESMR Licensees. Enhanced Specialized Mobile Radio (ESMR) 
licensees and ESMR-eligible licensees who operate 800 MHz systems in 
the Puerto Rico region would be required to relocate their station 
facilities according to the band plans proposed in the Second FNPRM. 
Neither the Commission nor the SBA has developed a definition of small 
businesses directed specifically toward these licensees.

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

    13. The Second FNPRM does not propose a rule that will entail 
additional reporting, recordkeeping, and/or third-party consultation or 
other compliance efforts.

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

    14. 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 or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) exemption from 
coverage of the rule, or any part thereof, for small entities.''
    15. The Puerto Rico market presents a unique situation that is 
distinct from other markets. Sprint holds considerably less spectrum in 
Puerto Rico than it does elsewhere, and there are several other 
licensees who have acquired significant EA license holdings in Puerto 
Rico at auction and seek to operate as ESMRs. In addition, Puerto Rico 
has numerous site-based incumbents that will need to be relocated to 
the non-ESMR block. Thus, an alternative band plan is appropriate here. 
Accordingly the Commission provided the 800 MHz Transition 
Administrator (TA) with specific criteria and directed the TA to 
propose an alternative band plan, including, if necessary, a pro rata 
distribution of ESMR spectrum. At the time the Commission adopted these 
criteria, it had no basis for anticipating that any future decision by 
the TA in either proposing an alternative band plan or proposing a pro 
rata distribution would adversely affect any small entities. The TA 
proposes to apportion the Puerto Rico Band Plan consistent with these 
criteria.
    16. To the extent that adoption of the TA's Puerto Rico Band Plan 
may impose an economic impact in Puerto Rico on relocating non-ESMR and 
site-based incumbents, including public safety, to the non-ESMR band, 
that impact will be borne by Sprint because Sprint must pay the costs 
of 800 MHz band reconfiguration. Under Small Business Administration 
criteria, Sprint is a large entity. Further, there is no evidence in 
the record that non-Sprint licensees in the Puerto Rico market, 
including small wireless cellular, public safety, governmental entities 
or other wireless entities, would suffer adverse economic consequences. 
Indeed, these licensees are likely to enjoy several benefits, including 
improved interference protection as a result of band reconfiguration.
    17. Additionally, while apportioning spectrum in the ESMR band may 
result in a reduction in ESMR spectrum availability, these reductions 
can be accommodated when a licensee employs more spectrum-efficient 
technologies and higher-quality digital technologies. ESMR and ESMR-
eligible licensees are also likely to receive a number of benefits as a 
result of modifying the Puerto Rico Band Plan. For example, as a 
consequence of 800 MHz band reconfiguration ESMR-eligible licensees 
will be able to relocate EA and site-based facilities to the ESMR band 
that are currently located below the ESMR band. If these facilities are 
relocated and integrated into an ESMR band system, these licensees will 
be relieved of the cost and limitations associated with abating 
interference created by ESMR stations being interleaved with high-site 
systems used by public safety and others in the non-ESMR portion of the 
band, while taking advantage of spectrally efficient technologies.

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

    18. None.

Ordering Clauses

    19. Accordingly, it is ordered, pursuant to sections 4(i) and 332 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 332, 
that the Second Further Notice of Proposed Rulemaking is adopted.
    20. 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, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    21. It is further ordered that pursuant to applicable procedures 
set forth in sections 1.415 and 1.419 of the Commission's rules, 47 CFR 
1.415, 1.419, interested parties may file comments on or before August 
8, 2008, and reply comments on or before August 22, 2008.

Federal Communications Commission.
Derek K. Poarch,
Chief, Public Safety and Homeland Security Bureau.
 [FR Doc. E8-16036 Filed 7-11-08; 8:45 am]
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