[Federal Register Volume 73, Number 222 (Monday, November 17, 2008)]
[Rules and Regulations]
[Pages 67794-67801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27246]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 05-62; WT Docket No. 02-55; FCC 08-244]


Amendment of the Commission's Rules To Improve Public Safety 
Communications in the 800 MHz Band, and to Consolidate the 800 MHz and 
900 MHz Business and Industrial/Land Transportation Pool Channels

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) retains the current site-based licensing paradigm for the 
900 MHz B/ILT spectrum, and declines to adopt competitive bidding rules 
or geographic service areas for the licensing of 900 MHz B/ILT ``white 
space;'' adopts interference protection rules applicable to all 
licensees operating in the 900 MHz B/ILT spectrum; and lifts, on a 
rolling basis, the freeze placed on applications for new 900 MHz B/ILT 
licenses in September 2004, the lift being tied to the completion of 
rebanding in each 800 MHz National Public Safety Planning Advisory 
Committee (NPSPAC) region. The Commission takes these actions to 
balance the needs of incumbent 900 MHz B/ILT licensees and commercial 
providers that operate in the spectrum.

DATES: Effective December 17, 2008.

FOR FURTHER INFORMATION CONTACT: Michael Connelly, 
[email protected], Mobility Division, Wireless 
Telecommunications Bureau, (202) 418-0620, or TTY (202) 418-7233. For 
additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Judith Boley at 202-418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order (R&O), FCC 08-244, adopted 
October 9, 2008, and released October 22, 2008. The full text of the 
R&O is available for public inspection and

[[Page 67795]]

copying during regular business hours at the FCC Reference Information 
Center, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The 
complete text may be purchased from the Commission's duplicating 
contractor, Best Copying and Printing, Inc. (BCPI), 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, 
facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the 
appropriate FCC document number, FCC 08-244, for the R&O. The R&O is 
also available on the Internet at the Commission's Web site through its 
Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.

Paperwork Reduction Act of 1995 Analysis

    The R&O does not contain new or modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, 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).

Synopsis of Report and Order

I. Background

    1. In 1986, the Commission established a pool structure for the 900 
MHz PLMR spectrum and allocated 2.5 MHz for the Industrial/Land 
Transportation Pool (99 channels) and 2.5 MHz for the Business Pool 
(100 channels) (collectively, the B/ILT Pools) at 51 FR 37398, Oct. 22, 
1986. The B/ILT Pools were established for use by site-by-site 
licensees engaged in commercial activities, the operation of 
educational, philanthropic, or ecclesiastical institutions, clergy 
activities, or the operation of hospitals, clinics, or medical 
associations. In addition, eligibility was also provided for any 
corporations furnishing nonprofit radio communication service to its 
parent corporation or subsidiary. Currently, applications for use of 
the B/ILT frequencies are limited to private, internal use systems.
    2. In its 800 MHz Report and Order (800 MHz R&O) at 69 FR 67823, 
Nov. 22, 2004, the Commission adopted significant technical and 
procedural measures designed to address the problem of interference to 
public safety communications in the 800 MHz band. As part of its 
reconfiguration plan at 800 MHz, the Commission consolidated the B/ILT 
Pools in the 800 MHz and 900 MHz bands, allowing any eligible B/ILT 
licensee to be licensed on the consolidated channels. The Commission 
also provided for additional flexibility in the 900 MHz band by 
allowing 900 MHz PLMR licensees to initiate CMRS operations on their 
currently authorized spectrum or to assign their authorizations to 
others for CMRS use. The Commission reasoned that since it permitted 
CMRS use of PLMR frequencies in the 800 MHz land mobile band, similar 
rules should apply in the 900 MHz land mobile spectrum, in the interest 
of regulatory symmetry. The Commission also noted that in order to 
provide the ``green space'' necessary to effect reconfiguration of the 
800 MHz band, some operations may need to shift from the 800 MHz to 900 
MHz band.
    3. In September 2004, the Bureau issued a Public Notice freezing 
acceptance of applications for new 900 MHz B/ILT licenses until further 
notice. The Wireless Telecommunications Bureau (the Bureau) indicated 
that an exceptionally large number of applications for 900 MHz 
authorizations had been filed subsequent to the release of the 800 MHz 
R&O, which allowed 900 MHz B/ILT licensees to initiate commercial 
operations on their licensed spectrum or to assign their authorizations 
to others for commercial use. The Bureau noted its concern that 
additional such filings might compromise the ability to accommodate 
displaced systems while the 800 MHz band is reconfigured to abate 
unacceptable interference to public safety, critical infrastructure, 
and other ``high site'' 800 MHz systems. The Bureau determined that 
applications for modification of existing facilities, assignment of 
license, or transfer of control of a licensee would continue to be 
accepted, subject to applicable rules regarding eligibility, loading, 
and other requirements. In addition, applicants were advised that they 
might have recourse via the Commission's waiver provisions to request 
an exception to the freeze.
    4. The Commission adopted a Notice of Proposed Rulemaking (NPRM) at 
70 FR 13,143, March 18, 2005, in WT Docket 05-62 proposing to amend 
it's rules to facilitate more flexible use of the 900 MHz B/ILT band 
and to license any remaining spectrum in the band using a geographic 
area licensing scheme. The NPRM also sought comment on defining the 
rights of B/ILT licensees already operating on the 900 MHz B/ILT 
frequencies, and on using competitive bidding rules, in the event 
mutually exclusive applications were filed for the proposed 900 MHz 
geographic licenses. The Commission also reaffirmed the Bureau's freeze 
on new applications for 900 MHz B/ILT licenses, concluding that 
allowing the continued filing of applications for new 900 MHz B/ILT 
licenses during the rulemaking period might limit the effectiveness of 
the decisions ultimately made in WT Docket No. 05-62. In response to 
the NPRM, the Commission received 20 comments, ten reply comments, and 
numerous ex parte filings.

II. Discussion

A. Retention of Site-Based Licensing for 900 MHz B/ILT Channels
    5. In the R&O, the Commission retained the current site-based 
licensing paradigm for new applications for 900 MHz B/ILT licenses, 
declining to adopt at this time the geographic area and competitive 
bidding licensing rules and policies proposed in the NPRM. There, the 
Commission proposed service rules for 900 MHz B/ILT channels to provide 
licensees with the flexibility to employ the spectrum for any use 
permitted by the United States Table of Frequency Allocations contained 
in part 2 of our rules (i.e., fixed or mobile services). The Commission 
tentatively concluded to adopt a geographic area licensing scheme for 
the 900 MHz B/ILT spectrum because such an approach would be consistent 
with flexible use management principles, and requested comment on that 
tentative conclusion.
    6. Some commenters supported competitive bidding and flexible use 
rules (including geographic area licensing) for all unlicensed 900 MHz 
B/ILT spectrum. For example, Nextel asserted that the existing 900 MHz 
B/ILT access rules are limiting, inefficient, and a gross 
underutilization of spectrum that, if unchanged, would impede the 
ability of the marketplace to respond to consumer demand. While 
conceding that there may be circumstances under which the Commission 
may need to ``set aside'' spectrum for particular uses in order to 
achieve important public interest goals, Nextel notes the Commission 
has in the past decade adopted flexible and competitive licensing 
policies to promote an innovative marketplace, and that auctioning all 
unused 900 MHz B/ILT spectrum will facilitate successful 800 MHz 
reconfiguration.
    7. The majority of commenters opposed using competitive bidding to 
license the remaining 900 MHz B/ILT spectrum using geographic service

[[Page 67796]]

areas, many of whom urge the Commission, if it were to conduct an 
auction, to set aside some portion of currently unlicensed 900 MHz B/
ILT white space for traditional B/ILT use. For example, the Joint 
Commenters contended that auctioning all 900 MHz B/ILT white space was 
tantamount to a ``complete loss'' of the 900 MHz band for incumbent B/
ILT licensees, and would ``strand'' incumbents at their existing 
capacity levels and service areas. The Joint Commenters questioned 
whether the public interest truly is best served by allocating all 
unencumbered spectrum for cell phones and utilizing spectrum auctions 
in light of the growth needs of traditional B/ILT licensees. In the 
event the Commission were to decide to auction and license all 
available 900 MHz B/ILT white space, the Joint Commenters urge the 
Commission to reserve some spectrum for continued site-based licensing 
under current eligibility requirements.
    8. The Commission found that the record, as developed in the 
docket, supports retention of the current site-based licensing formula 
for the 900 MHz B/ILT spectrum, and therefore declined to adopt 
competitive bidding rules or geographic service areas to license 900 
MHz B/ILT ``white space.'' It was persuaded by the record that the 
dedicated spectrum allotted to B/ILT licensees at 900 MHz represents 
one of the few remaining opportunities for such licensees to obtain 
much-needed spectrum, noting geographic-based service area licensing in 
lieu of site-based licensing would do little in terms of meeting the 
needs of current and future 900 MHz B/ILT licensees, many of whom would 
be forced to acquire at auction more spectrum than what they actually 
need, or can afford, to ensure that they have adequate spectrum 
necessary for wireless telecommunications systems to support their 
operations. Even if a traditional 900 MHz B/ILT licensee determined 
that it was fiscally responsible to acquire a geographic-based license, 
the Commission remained concerned that portions of the acquired 
spectrum would remain unused and undervalued, precisely the result the 
Commission sought to avoid when it opened this proceeding.
    9. A significant underlying rationale for proposing geographic 
service areas and competitive bidding rules to license 900 MHz B/ILT 
spectrum white space was the need to facilitate 800 MHz rebanding, on 
the theory that 800 MHz commercial licensees would need to relocate to 
a band with similar spectral characteristics. Sprint Nextel, an 800 MHz 
commercial licensee, has indicated that it has acquired hundreds of 900 
MHz B/ILT site-based licenses, and will continue to acquire such 
licenses, in order to support 800 MHz rebanding. In addition, Sprint 
Nextel has obtained special temporary authority (STA) from the 
Commission to operate on a temporary basis on 900 MHz B/ILT spectrum in 
order to support its 800 MHz rebanding efforts. Finally, Sprint Nextel 
is using spectrum leasing arrangements as a means for obtaining 900 MHz 
B/ILT spectrum to be used on a time-limited basis to facilitate 800 MHz 
rebanding. Those options remain open to Sprint Nextel under the action 
the Commission took in the R&O. In light of the opportunities Nextel 
has for obtaining 900 MHz B/ILT spectrum to support its 800 MHz 
rebanding activities, adoption of geographic area licensing and 
competitive bidding rules for 900 MHz B/ILT spectrum is no longer 
essential to the success of the 800 MHz rebanding process, and may in 
fact impede the effective use of this spectrum by many other incumbents 
and potential licensees in the 900 MHz B/ILT band.
B. Interference Protection in the 900 MHz B/ILT Band
    10. In the NPRM, the Commission proposed requiring geographic area 
licensees to afford the same protection to incumbent 900 MHz B/ILT 
systems that 900 MHz SMR MTA licensees must currently provide to 
incumbents. The Commission also asked if additional interference 
protection requirements were necessary and, if so, what additional 
rules should apply and why. The Commission specifically asked whether 
the overall approach to interference protection should be modified to 
include the interference abatement requirements mandated in the 800 MHz 
R&O, or an enhanced or voluntary Best Practices approach to address 
potential interference in this band.
    11. A number of commenters urged adoption of the same or similar 
interference abatement requirements for the 900 MHz B/ILT spectrum as 
those previously established for a post-rebanded 800 MHz environment in 
the 800 MHz R&O. In initial comments in this proceeding, for example, 
the Joint Commenters asserted that it is imperative that incumbents be 
adequately protected from interference caused by new (commercial) 
entrants. They also asserted there is reason to believe the 
introduction of commercial cellular networks into the 900 MHz bands 
would cause harmful interference to incumbents in the bands. AAR also 
urges adoption of the 800 MHz interference abatement rules. In a 
subsequent ex parte presentation, the Joint Commenters, joined by 
Enterprise Wireless Alliance and United Parcel Service, urged that 
Sec.  90.672(a) of the Commission's rules regarding unacceptable 
interference to non-cellular 800 MHz licensees from 800 MHz cellular 
systems or part 22 cellular systems be amended to include 900 MHz B/ILT 
spectrum. Section 90.672(a) defines ``unacceptable interference'' as 
occurring when a fully operational transceiver receives minimum median 
desired signal strengths of -104/-101 dBm, as measured at the radio 
frequency (RF) input of the receiver of a mobile/portable unit, and 
when a voice transceiver receives an undesired signal or signals that 
cause the measured Carrier to Noise plus Interference (C/(I+N)) ratio 
of a receiver to be less than 20 dB.
    12. Sprint Nextel opposed implementing the same standards in 900 
MHz B/ILT spectrum as the Commission adopted for post-rebanded 800 MHz 
spectrum. Initially, in responding to the proposals set out in the 
NPRM, Nextel asserted that new 900 MHz B/ILT geographic area licensees 
should provide the same level of protection to co-channel 900 MHz B/ILT 
incumbents that 900 MHz SMR licensees must provide, and that incumbents 
are entitled to protection within their originally-licensed 40 dB[mu] 
V/m field strength contours. Further, it urges voluntary ``Best 
Practices'' and a commitment by 900 MHz CMRS licensees to cooperate on 
a case-by-case basis with incumbent 900 MHz B/ILT licensees. Nextel 
cautioned strongly against adopting the interference abatement 
requirements adopted in the 800 MHz R&O, on the grounds that there are 
no public safety channels allocated at 900 MHz; that incumbents can 
finance robust, interference-resistant systems; that there have been no 
complaints regarding Sprint Nextel's dual band 800 MHz/900 MHz Enhanced 
Specialized Mobile Radio (ESMR) system (operating since 2002); and that 
to adopt the 800 MHz interference measures for the 900 MHz white space 
would impose substantial operational burdens on geographic licensees, 
and would be contrary to the FCC's flexible use policies. In a 
subsequent ex parte presentation, Sprint Nextel suggested that, to the 
extent the Commission looks to the 800 MHz rebanding proceeding for 
guidance regarding interference protection standards and practices for 
the 900 MHz B/ILT spectrum, the interference protection standards that 
apply to the 800 MHz band's interleaved

[[Page 67797]]

spectrum during the transition to spectral segregation would be more 
appropriate than the standards to be applied when the rebanding is 
completed. Sprint Nextel avers that the interference abatement 
protection it has to extend in an interleaved environment, during the 
rebanding transition, while lower than the protection afforded post-
rebanding, is a more comparable standard in light of the nature of 
operations in the 900 MHz B/ILT band.
    13. The Commission noted that in the 800 MHz Supplemental Report 
and Order, 70 FR 6757, Feb. 8, 2005, in the 800 MHz rebanding 
proceeding, it had acknowledged that the rules adopted for a post-
rebanded environment could impose substantial operational restrictions 
on ESMR carriers operating in the interleaved channels prior to 
completion of band reconfiguration, and that field experience had shown 
that a lesser standard, while less ``complete,'' could nevertheless 
provide meaningful interference protection during transition. The 
Commission therefore waived Sec. Sec.  22.970(a) and 90.672(a) of its 
rules until band reconfiguration was complete in a particular NPSPAC 
region. In waiving the rules, the Commission determined that, during 
the interim transition period, non-cellular systems would enjoy 
interference protection for signal strengths of -85 dBm for portables 
and -88 dBm for mobiles. While noting that these levels were not 
universally applauded, the Commission observed that they were supported 
by Nextel and several commercial, private, and public safety members of 
the 800 MHz community. The Commission found a direct relationship 
between these interim interference protection levels and the ability of 
ESMR and cellular carriers to serve their subscribers adequately, a 
factor affecting both the public's access to wireless services and the 
viability of a carrier's business.
    14. Noting that a spectrally interleaved environment, where 
technically different systems operate on a co-channel and/or adjacent 
channel basis, is developing within the 900 MHz band, the Commission 
adopted standards in the R&O based on the standards it had implemented 
for the rebanding transition period in the 800 MHz band. Specifically, 
all licensees operating in the 900 MHz B/ILT frequencies are entitled 
to interference protection for portable/hand-held units with a minimum 
median desired signal strength of -85 dBm and for mobile/vehicular 
units with a minimum median desired signal strength of -88 dBm. Similar 
to the Commission's observation in the context of 800 MHz rebanding, it 
concluded that these values likewise are ``within the range of reason'' 
for providing meaningful interference protection for all licensees 
operating on 900 MHz B/ILT frequencies. The Commission adopted a 
revision to Sec.  90.672 of it's rules that provides that unacceptable 
interference will be deemed to occur to operations in the 900 MHz B/ILT 
band where, assuming all other conditions as provided in the amended 
rule section are met, a voice transceiver is receiving an undesired 
signal or signals that cause the measured Carrier to Noise plus 
Interference (C/(I+N)) ratio of the transceiver's received to be less 
than 17 dB. As with the median desired signal, the value the Commission 
adopted for this ratio is consistent with the value that is applicable 
to the 800 MHz band during the rebanding transition. Finally, the 
Commission adopted the proposal put forth by the Joint Commenters for 
establishing minimum receiver standards for mobile and portable units 
used in the 900 MHz B/ILT band: 60 dB intermodulation rejection ratio; 
60 dB adjacent channel rejection; and -116 dBm reference sensitivity. 
These minimum receiver standards are part of the package of rule 
provisions designed to guard against unacceptable interference in the 
900 MHz B/ILT band.
C. Lifting the Freeze Place on Applications for New 900 MHz B/ILT 
Licenses
    15. The Bureau imposed a freeze on the acceptance of applications 
for new 900 MHz B/ILT licenses in September 2004 at 19 FCC Rcd 18277 
(WTB 2004), and the Commission affirmed that freeze in the NPRM. 
Because the Commission is concluding WT Docket 05-62, and in light of 
the actions it took in the R&O, the Commission lifted the freeze placed 
on the filing of applications for new 900 MHz B/ILT authorizations. 
Specifically, the freeze will be lifted in a NPSPAC region six months 
after rebanding is complete in that particular NPSPAC region. The 
Commission believes this approach best balances the demands for 900 MHz 
B/ILT spectrum, including the ongoing needs of Nextel for access to 
this spectrum to support its rebanding efforts. As of October 9, 2008, 
the Commission has granted special temporary authorizations to Sprint 
Nextel to operate temporarily on 900 MHz B/ILT spectrum in 101 markets 
in order to provide ``green space'' necessary to enable the relocation 
of 800 MHz incumbents during the reconfiguration of this band. The 
Commission is concerned that lifting the 900 MHz B/ILT application 
freeze in its entirety at this time could jeopardize Nextel's 800 MHz 
rebanding efforts. Accordingly, we will not lift the freeze in a 
particular NPSPAC region until six months after the date that rebanding 
is completed in that particular region. We believe that this timeframe 
will provide Nextel a reasonable opportunity to relocate its facilities 
off the 900 MHz B/ILT frequencies it is now using under special 
temporary authority. In order to avoid any confusion regarding the date 
when the 900 MHz B/ILT application freeze is lifted in any particular 
NPSPAC region, the Commission directed the Bureau, in coordination with 
the Public Safety and Homeland Security Bureau, to provide public 
notice as to when the freeze will end within 60 days of rebanding being 
completed within a specific NPSPAC region.
    16. In addition, the Commission noted there may be situations in 
which an applicant seeks a 900 MHz B/ILT authorization for spectrum in 
a NPSPAC region where the freeze has been lifted that could extend the 
applicant's service contour into an adjacent NPSPAC region where the 
freeze has not been lifted. In such a case, the applicant may file a 
waiver request to allow its coverage to extend into the NPSPAC region 
in which the freeze remains in effect, provided the overlapping 
coverage area is limited and would not disrupt Nextel's rebanding 
efforts in the region. Further, the Commission reminded potential 900 
MHz B/ILT applicants that, under the applicable rules, co-channel 
frequency usage in a NPSPAC region where the freeze has not yet been 
lifted may limit the geographic area in which applications can be 
permissibly filed in a NPSPAC region where the freeze is no longer in 
effect.

III. Conclusion

    17. In the R&O, the Commission decided to retain site-based 
licensing for the 900 MHz B/ILT band, believing this action will help 
ensure the continued viability of 900 MHz B/ILT communications 
operations, which play an essential role in emergencies, critical 
infrastructure operations, homeland security, and the U.S. economy. At 
the same time, Nextel will retain a number of mechanisms to access 900 
MHz B/ILT spectrum to be used as ``green space'' during the course of 
the 800 MHz rebanding process. The Commission also adopted interference 
standards that will help to facilitate interference-free operation in 
this band and accommodate the range of licensees operating in this 
band. Finally, the Commission lifted the freeze on the filing of 
applications for new 900 MHz

[[Page 67798]]

B/ILT licenses in each 800 MHz NPSPAC region six months after 800 MHz 
rebanding is completed in that region. The Commission believes that its 
actions in this proceeding achieve a balance of competing interests 
that will best serve the needs of the public.

IV. Procedural Matters

A. Regulatory Flexibility Act
    18. As required by the Regulatory Flexibility Act of 1980 (RFA), 
the Commission has prepared a Final Regulatory Flexibility Analysis 
(FRFA) of the possible significant economic impact on small entities of 
the policies and rules adopted in this R&O. The analysis is found in an 
appendix to the R&O.
B. Congressional Review Act
    19. The Commission will send a copy of the R&O to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).
C. Accessible Formats
    20. Accessible formats of the R&O (Braille, large print, electronic 
files, audio format), are available to persons with disabilities by 
sending an e-mail to [email protected] or by calling the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(TTY). The R&O can also be downloaded at http://www.fcc.gov.

V. Final Regulatory Flexibility Act Analysis

    21. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM). The 
Commission sought written public comment on the proposals in the NPRM, 
including comment on the IRFA. This present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Rules
    22. In the R&O, the Commission takes three actions: First, it 
retains the current site-based licensing paradigm for the 199 channels 
allocated to the Business and Industrial Land Transportation (B/ILT 
Pool) in the 896-901/935-940 MHz (900 MHz) band (900 MHz B/ILT Pool) 
and declines to adopt competitive bidding rules or geographic service 
areas for the 900 MHz B/ILT ``white space;'' second, it amends part 90 
of the Commission's rules to establish interference protection rules 
for licensees operating in the 900 MHz B/ILT Pool; and third, it lifts, 
on a rolling basis, the freeze on applications for new licenses in the 
900 MHz B/ILT Pool.
    23. Regarding retention of the current site-based licensing 
paradigm, the spectrum allotted to 900 MHz B/ILT licensees is one of 
the few remaining area where such licensees can obtain spectrum 
essential to their safe and efficient operation; transitioning to 
geographic area licensing could in many cases frustrate normal B/ILT 
system growth. Traditional B/ILT licensees have a vital communications 
role in safeguarding critical infrastructure (CI) industries, including 
such varied and critical industries as utilities, land transportation, 
manufacturers/industry, and petro-chemical. Finally, an important 
rationale for originally proposing to adopt geographic service areas 
and competitive bidding processes was to facilitate rebanding at 800 
MHz by allowing Sprint Nextel to relocate to spectrally-similar 900 MHz 
B/ILT spectrum. Through a combination of acquisition of site-based 
licenses, special temporary authorizations, and spectrum leasing at 900 
MHz, Sprint Nextel appears to have acquired sufficient spectrum at 900 
MHz to allow it to proceed with the 800 MHz rebanding, and the 
Commission concludes that geographic licensing and competitive bidding 
rules are not now essential to the success of 800 MHz rebanding.
    24. Regarding amending part 90 of the Commission's rules to 
establish interference protection standards, the environment at 900 MHz 
is similar to the spectrally interleaved environment that exists today 
at 800 MHz during the current rebanding transition period. In the 800 
MHz Supplemental Report and Order, the Commission adopted an 
``interim'' interference protection standard that cellular licensees 
need to afford non-cellularized systems prior to the completion of 
rebanding. Because the 900 MHz band has and will continue to include 
systems employing different technologies and with different operational 
characteristics that are spectrally interleaved, the 800 MHz 
``interim'' environment is sufficiently similar to the 900 MHz spectrum 
environment that the rules the Commission adopted for use during the 
800 MHz rebanding transition are appropriate for the 900 MHz B/ILT 
spectrum.
    25. Regarding lifting the freeze on applications for new licenses 
in the 900 MHz B/ILT Pool, the freeze placed on applications for new 
900 MHz B/ILT licenses in September 2004 will be lifted on a rolling 
basis, tied to the completion of rebanding in each 800 MHz National 
Public Safety Planning Advisory Committee (NPSPAC) region. 
Specifically, the freeze will be lifted in a NPSPAC region six months 
after rebanding is complete in that particular NPSPAC region. The 
Commission will provide notice to the public regarding the date on 
which the freeze will be lifted in each NPSPAC region after rebanding 
concludes in that region. Accepting applications for new authorizations 
on a rolling basis best balance the demands for 900 MHz B/ILT spectrum, 
including the ongoing needs of Sprint Nextel for access to this 
spectrum to support its rebanding efforts. Lifting the freeze on a 
rolling basis, with a six-month ``grace period,'' will provide Sprint 
Nextel a reasonable opportunity to relocate its facilities off the 900 
MHz B/ILT frequencies it is now using under special temporary 
authority.
B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    26. No comments or reply comments were filed in direct response to 
the IRFA.
C. Description and Estimate of the Number of Small Entities To Which 
the 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 and policies, 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 
SBA.
    28. Small Businesses. Nationwide, there are a total of 
approximately 22.4 million small businesses, according to SBA data.
    29. Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.
    30. Small Governmental Jurisdictions. 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

[[Page 67799]]

(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. In completing this FRFA, we recognize that small governmental 
jurisdictions are, in fact, likely to be 900 MHz B/ILT licensees.
    31. Wireless Telecommunications Carriers. The SBA has developed a 
small business size standard for wireless firms within the broad 
economic census category of ``Wireless Telecommunications Carriers 
(except Satellite).'' Under this category, the SBA deems a wireless 
business to be small if it has 1,500 or fewer employees. For the census 
category of wireless telecommunications carrier, Census Bureau data for 
2002 show that there were 11,156 firms in this category that operated 
for the entire year. Of this, 9,770 had fewer than 100 (one hundred) 
employees. Thus, under this category and size standard, the great 
majority of firms can be considered small.
    32. Licensees in the 900 MHz B/ILT band generally fall into one of 
two categories: wireless telecommunications carrier (except satellite) 
that provide service to other parties, and entities that use the 
spectrum solely for internal purposes, not to provide 
telecommunications services to other, but rather to support their 
primary operations. The first category of licensees, those that provide 
telecommunications service to others, are typically incumbent B/ILT 
licensees that have either converted their operations to commercial 
use, as is allowed under Commission rules, or assigned their licenses 
to a commercial operator for commercial use. Others in this category 
include commercial entities operating in this band under special 
temporary authority, or through a leasing arrangement with an incumbent 
B/ILT licensee. In the second category are more traditional B/ILT 
licensees, ``traditional'' in that provision of telecommunications 
services is not their primary operation. Rather, these licensees hold 
authorizations to operate in the 900 MHz B/ILT only to the extent that 
holding such authorizations, and providing communication, further their 
primary operations. Examples include public utilities, small, mid-size, 
and large manufacturers, parcel delivery companies, etc.
    33. Estimates for Private Land Mobile Radio (PLMR) Licensees, 
including 900 MHz B/ILT Licensees. As a preliminary matter, we note 
that 900 MHz B/ILT licensees fall under the SBA designation of wireless 
telecommunications carriers (except satellite). Private land mobile 
radio systems serve an essential role in a vast range of industrial, 
business, land transportation, and public safety activities. These 
radios are used by companies of all sizes operating in all U.S. 
business categories. Because of the vast array of PLMR users, the 
Commission has not developed a definition of small entities 
specifically applicable to PLMR users, nor has the SBA developed so 
specific a definition. As noted above, under this category and size 
standard, the great majority of firms can be considered small. For the 
purpose of determining whether a licensee is a small business as 
defined by the SBA, each licensee would need to be evaluated within its 
own business area. The Commission's fiscal year 1994 annual report 
indicates that, at the end of fiscal year 1994, there were 1,101,711 
licensees operating 12,882,623 transmitters in the PLMR bands below 512 
MHz. For purposes of FRFA analysis, we assume the vast majority of all 
PLMR licensees are small.
    34. The Commission has determined that there are approximately 
1,000 licensees in the 896-901 MHz and 935-940 MHz B/ILT MHz bands, as 
of October 9, 2008; the Commission does not know how many licensees in 
these bands are small entities, as the Commission does not collect that 
information for these types of entities. The Commission notes that, 
under the action it takes in this Order, entities, including small 
businesses, may resume filing for authorizations in this service. The 
Commission does not know how many entities that will file for 
authorization will be small entities. Thus, the Commission assumes, for 
purposes of the FRFA, that all prospective licensees are small entities 
as that term is defined by the SBA or by our proposed small business 
definitions for these bands.
D. Description of Projected Reporting, Recordkeeping, and other 
Compliance Requirements
    35. There are no new reporting or recordkeeping requirements 
adopted in the R&O that impose new compliance requirements on affected 
entities.
E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    36. 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.
    37. Regarding retention of the current site-based licensing 
formula, the Commission considered adopting competitive bidding rules 
and geographic-area licensing, but found that the adverse effects of 
changing the licensing system on all current and future licensees in 
this service, and particularly including small businesses, were too 
great. The Commission is in particular concerned that traditional 900 
MHz B/ILT licensees, whose primary business is something other than 
provision of communications services, would have to acquire far more 
spectrum at auction than they would need, causing the type of spectrum 
hoarding and warehousing the Commission has worked against. The 
Commission therefore decided to retain the current licensing system.
    38. Regarding amending part 90 of the Commission's rules to account 
for, and limit harmful interference within, the interleaved environment 
of the 900 MHz B/ILT spectrum, the Commission considered three options: 
To adopt the same rules as will be applied in the post-rebanded 800 MHz 
environment; to retain the current 900 MHz B/ILT interference 
protection rules; and to adopt the rules currently in effect at 800 MHz 
during the rebanding transition period. The first option could have 
been too burdensome for Sprint Nextel and possibly other 900 MHz B/ILT 
licensees; complying with 800 MHz-type interference protection would 
have been so costly as to prevent Sprint Nextel from even considering 
use of the 900 MHz B/ILT band. The second option, based as it is on the 
assumption of little interference, may not provide sufficient 
protection for a number of 900 MHz B/ILT licensees from powerful 
commercial carrier such as Sprint Nextel, which in turn would impede 
their (i.e., incumbent and ``traditional'' 900 MHz B/ILT licensees) 
ability to operate effectively. Adversely affected entities under 
either option could include small businesses. The Commission adopted 
the third option as an appropriate balancing of burdens and achievement 
of suitable interference protection. The Commission has acknowledged 
that the interference protection standard adopted here is the most 
appropriate for all parties for an interleaved spectral

[[Page 67800]]

environment such as the 900 MHz B/ILT band.
    39. In the Commission's view, establishing a generally-applicable 
interference protection standard for the 900 MHz B/ILT Pool will 
effectively eliminate costs that all licensees, including small 
entities, would incur to resolve an interference complaint. The 
Commission believes that any up-front costs associated with initial 
compliance with the amended rule outweigh the costs associated with 
addressing and resolving an interference issue. Finally, the Commission 
believes that among the alternative rules proposed in the NPRM, the one 
it adopts in the R&O (i.e., holding all 900 MHz B/ILT Pool licensees to 
the same interference protection rights and obligations, as opposed to 
adopting two or more interference protection standards) is the least 
onerous to, and most effective for, all parties, including small 
entities, in that adopting a generally-applicable standard puts all 
licensees in an equal position.
    40. Regarding lifting the freeze placed on applications for new 
authorizations for 900 MHz B/ILT licenses, with adoption of the R&O, 
there is no compelling reason to maintain the freeze; the Commission's 
action will only benefit small businesses, as it will allow them to 
apply for new or additional 900 MHz B/ILT spectrum.
F. Report to Congress
    41. The Commission will send a copy of the R&O, including the FRFA, 
in a report to be sent to Congress pursuant to the Congressional Review 
Act. In addition, the Commission will send a copy of the R&O, including 
the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
R&O and FRFA (or summaries thereof) will also be published in the 
Federal Register.

IV. Ordering Clauses

    42. Pursuant to sections 1, 4(i), 303, 309, 316, and 332 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 
309, 316, and 332, the R&O is hereby adopted.
    43. Part 90 of the Commission's rules is amended as set forth in 
Appendix B of the R&O and that these rules shall be effective December 
17, 2008.
    44. The Petitions for Reconsideration filed by the Association of 
American Railroads on December 17, 2004, by the National Association of 
Manufacturers and MRFAC, Inc. on December 22, 2004, and by Exelon 
Corporation on December 22, 2004, in WT Docket No. 02-55 et. al. are 
granted to the extent described herein.
    45. The freeze placed on applications for new 900 MHz Business/
Industrial Land Transportation licenses by Public Notice, September 17, 
2004, is hereby lifted, at such time and under the conditions set forth 
in the R&O.
    46. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of the R&O, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 90

    Communications common carriers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

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

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

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

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


0
2. Section 90.672 is revised to read as follows:


Sec.  90.672  Unacceptable interference to non-cellular 800 MHz 
licensees from 800 MHz cellular systems or Part 22 Cellular 
Radiotelephone systems, and within the 900 MHz Business/Industrial Land 
Transportation Pool.

    (a) Definition. Except as provided in 47 CFR 90.617(k), 
unacceptable interference to non-cellular licensees in the 800 MHz band 
from 800 MHz cellular systems or part 22 of this chapter, Cellular 
Radiotelephone systems and within the 900 MHz Business/Industrial Land 
Transportation (B/ILT) Pool will be deemed to occur when the below 
conditions are met:
    (1) A transceiver at a site at which interference is encountered:
    (i) Is in good repair and operating condition, and is receiving:
    (A) A median desired signal strength of -104 dBm or higher if 
operating in the 800 MHz band, or a median desired signal strength of -
88 dBm if operating in the 900 MHz B/ILT Pool, as measured at the R.F. 
input of the receiver of a mobile unit; or
    (B) A median desired signal strength of -101 dBm or higher if 
operating in the 800 MHz band, or a median desired signal strength of -
85 dBm if operating in the 900 MHz B/ILT Pool, as measured at the R.F. 
input of the receiver of a portable i.e., hand-held unit; and either
    (ii) Is a voice transceiver:
    (A) With manufacturer published performance specifications for the 
receiver section of the transceiver equal to, or exceeding, the minimum 
standards set out in paragraph (b) of this section, and;
    (B) Receiving an undesired signal or signals which cause the 
measured Carrier to Noise plus Interference (C/(I+N)) ratio of the 
receiver section of said transceiver to be less than 20 dB if operating 
in the 800 MHz band, or less than 17 dB if operating in the 900 MHz B/
ILT Pool, or;
    (iii) Is a non-voice transceiver receiving an undesired signal or 
signals which cause the measured bit error rate (BER) (or some 
comparable specification) of the receiver section of said transceiver 
to be more than the value reasonably designated by the manufacturer.
    (2) Provided, however, that if the receiver section of the mobile 
or portable voice transceiver does not conform to the standards set out 
in paragraph (b) of this section, then that transceiver shall be deemed 
subject to unacceptable interference only at sites where the median 
desired signal satisfies the applicable threshold measured signal power 
in paragraphs (a)(1)(i) of this section after an upward adjustment to 
account for the difference in receiver section performance. The upward 
adjustment shall be equal to the increase in the desired signal 
required to restore the receiver section of the subject transceiver to 
the 20 dB C/(I+N) ratio of paragraph (a)(1)(ii)(B) of this section. The 
adjusted threshold levels shall then define the minimum measured signal 
power(s) in lieu of paragraphs (a)(1)(i) of this section at which the 
licensee using such non-compliant transceiver is entitled to 
interference protection.
    (b) Minimum Receiver Requirements. Voice transceivers capable of 
operating in the 806-824 MHz portion of the 800 MHz band, or in the 900 
MHz Business/Industrial Land Transportation Pool, shall have the 
following minimum performance specifications in order for the system in 
which such transceivers are used to claim entitlement to full 
protection against unacceptable interference. (See paragraph (a)(2) of 
this section.)
    (1) Voice units intended for mobile use: 75 dB intermodulation 
rejection ratio; 75 dB adjacent channel rejection ratio; -116 dBm 
reference sensitivity.
    (2) Voice units intended for portable use: 70 dB intermodulation 
rejection

[[Page 67801]]

ratio; 70 dB adjacent channel rejection ratio; -116 dBm reference 
sensitivity.
    (3) Voice units intended for mobile or portable use in the 900 MHz 
Business/Industrial Land Transportation Pool: 60 dB intermodulation 
rejection ratio; 60 dB adjacent channel rejection ratio; -116 dBm 
reference sensitivity.

[FR Doc. E8-27246 Filed 11-14-08; 8:45 am]
BILLING CODE 6712-01-P