[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Rules and Regulations]
[Pages 20602-20605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10324]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; DA 09-442]


Public Safety and Homeland Security Bureau Establishes Post-
Reconfiguration 800 MHz Band Plan for the U.S.-Canada Border Regions

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document the Federal Communications Commission's 
Public Safety and Homeland Security Bureau (PSHSB or Bureau), on 
delegated authority, addresses a petition for reconsideration of the 
reconfigured 800 MHz band plan established for the U.S.-Canada border 
in the Second Report and Order and, on its own motion, clarifies and 
corrects certain rules established in the Second Report and Order.

DATES: Effective July 6, 2009.

ADDRESSES: Federal Communications Commission, 445-12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Brian Marenco, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-0838.

SUPPLEMENTARY INFORMATION: This is a summary of the Fourth Memorandum 
Opinion and Order, DA 09-442, released on February 25, 2009. 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. However, the Commission deferred consideration of 
band reconfiguration plans for the border areas, noting that 
``implementing the band plan in areas of the United States bordering 
Mexico and Canada will require modifications to international 
agreements for use of the 800 MHz band in the border areas.'' The 
Commission stated that ``the details of the border plans will be 
determined in our ongoing discussions with the Mexican and Canadian 
governments.''
    2. In a Second Memorandum Opinion and Order, adopted in May 2007, 
the Commission delegated authority to PSHSB to propose and adopt border 
area band plans once agreements are reached with Canada and Mexico, 72 
FR 39756, July 20, 2007.
    3. In July 2007, the U.S. and Canada reached an agreement on a 
process that will enable the U.S. to proceed with band reconfiguration 
in the border region. Consequently, on November 1, 2007, PSHSB issued a 
Further Notice of Proposed Rulemaking (FNPRM) seeking comment on 
specific proposals for reconfiguring the eight U.S.-Canada border 
regions, 72 FR 63869, November 13, 2007. The Commission received ten 
comments and eight reply comments in response to the FNPRM.
    4. On May 9, 2008, PSHSB issued a Second Report and Order (Second 
R&O) establishing reconfigured band plans in the U.S.-Canada border 
regions, 73 FR 33728, June 13, 2008. The band plans adopted in the 
Second R&O are designed to separate--to the greatest extent possible--
public safety and other non-cellular licensees from licensees that 
employ cellular technology in the band.
    5. On July 14, 2008, Sprint filed a Petition for Clarification 
seeking reconsideration of certain portions of the 800 MHz Second R&O.
    6. Consequently, on February 25, 2009, PSHSB issued a Fourth 
Memorandum Opinion and Order (Fourth MO&O) addressing Sprint's 
petition. In this Fourth MO&O, PSHSB also clarifies and corrects 
certain rules established in the 800 MHz Second R&O.

Procedural Matters

A. Final Regulatory Flexibility Certification

    7. A Final Regulatory Flexibility Certification required by section 
604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in 
Appendix A of the Fourth MO&O.

B. Final Paperwork Reduction Act of 1995 Analysis

    8. The Fourth MO&O does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. Therefore it does not contain any new or 
modified ``information burden for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198.

Final Regulatory Flexibility Certification

    9. The Regulatory Flexibility Act of 1980, as amended (RFA) 
requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' The RFA generally defines ``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). In sum, we certify that the rule changes and actions in the 
Fourth MO&O will have no significant economic impact on a substantial 
number of small entities.

[[Page 20603]]

    10. As required by the RFA, an Initial Regulatory Flexibility 
Analysis (IRFA) was incorporated in the FNPRM in WT Docket 02-55, 72 FR 
63869, November 13, 2007. In the FNPRM, the PSHSB sought written public 
comment on proposals to reconfigure the 800 MHz band along the U.S.-
Canada border, including comment on the IRFA. Based upon the comments 
in response to the FNPRM, PSHSB established a new band plan for the 800 
MHz band along the U.S.-Canada border in the Second R&O and included a 
Final Regulatory Flexibility Analysis (``FRFA'') in that order, 73 FR 
33728, June 13, 2008.
    11. The Fourth MO&O clarifies portions of the Second R&O and 
addresses a petition for reconsideration of the Second R&O filed by 
Sprint Nextel Corporation (Sprint). Interested parties were afforded 
notice and opportunity to comment on the petition for reconsideration. 
See 73 FR 43753 and 73 FR 45103.
    12. Border Area Region 3 Band Plan. In its petition, Sprint states 
that the ``allocation'' of eight public safety pool channels above 
815.75/860.75 MHz in Region 3 (Ohio/Michigan) along the U.S.-Canada 
border is both unnecessary and needlessly complicating for rebanding. 
In this proceeding, the Bureau had adopted a band plan for Region 3 
which included over 300 channels for public safety in the lower portion 
of the band and an additional eight channels for public safety in the 
upper portion of the band immediately above 815.75/860.75 MHz. Sprint 
avers that the Bureau created enough spectrum ``slots'' to accommodate 
all existing public safety entities in the bottom of the band in this 
region. Consequently, Sprint seeks clarification that the Bureau 
intended to assign the eight channels above 815.75/860.75 MHz to the 
public safety pool, if, and only if, those channels are necessary for 
retuning public safety licensees that cannot be accommodated at the 
lowermost portion of the band. The State of Michigan (Michigan) opposes 
Sprint's proposal to modify the Region 3 band plan. Michigan notes that 
the Bureau's decision to provide a small allocation of non-NPSAC public 
safety channels above 815.75/860.75 MHz was in direct response to 
comments from public safety entities who advised the Bureau that these 
additional channels were needed to maintain post-rebanding spectrum 
comparability. For instance, Michigan notes that any attempt to 
accommodate non-NPSAC licensees in the 806-809 MHz/851-854 MHz portion 
of the band could seriously jeopardize the ``smooth'' migration of the 
NPSPAC licensees to this portion of the band.
    13. The Bureau agrees with Michigan on this issue and, in the 
Fourth MO&O, declines to make the change to the Region 3 band plan 
proposed by Sprint. The Bureau indicates that the eight 25 kHz spaced 
channels above 815.75/860.75 MHz will be needed to accommodate non-
NPSPAC public safety licensees relocating from the new NPSPAC band 
(806-809/851-854 MHz). Without these channels, the Bureau is concerned 
that additional non-NPSPAC public safety licensees will be forced to 
remain in the new NPSPAC band further complicating the relocation of 
NPSPAC licensees to this portion of the band. Since the Bureau is 
electing to make no change to the Region 3 band plan, we certify that 
our decision here will have no significant economic impact on a 
substantial number of small entities.
    14. Requests for Planning Funding. In its petition, Sprint seeks 
clarification that the Bureau did not intend to change the existing 
process for the submitting and handling of Requests for Planning 
Funding (RFPF) when the Bureau created its timeline for planning, 
negotiation and mediation for licensees along the U.S.-Canada border to 
complete planning. Sprint notes that pursuant to the current policies 
established by the 800 MHz Transition Administrator (TA), licensees are 
to submit RFPFs first to the TA and then, once they are deemed 
acceptable for processing, to Sprint. Consequently, in the Fourth MO&O, 
the Bureau clarifies that it had no intention of modifying the TA's 
policy for submission and handling of RFPFs and specifies that border 
area licensees who intend to seek planning funding should first submit 
RFPFs to the TA for approval before submitting them to Sprint in 
accordance with the TA policy. Because the Bureau is making no change 
to the TA's existing policy, we certify that this clarification will 
have no significant impact on a substantial number of small entities.
    15. Clarifications and Corrections to Section 90.619(c). In the 
Second R&O, the Bureau updated Section 90.619(c) to reflect the new 800 
MHz band plan along the U.S.-Canada border. In the Fourth MO&O, the 
Bureau makes certain clarifications and corrections to Section 
90.619(c). Specifically, in Table C3 of Section 90.619(c), the Bureau 
corrects the range for certain assumed average terrain elevation levels 
along the U.S.-Canada border. The Bureau also modifies Table C5 of 
Section 90.619(c) to clarify that licensees operating within 30 
kilometers of certain cities along the U.S.-Canada border are exempt 
from sharing primary spectrum with Canada but subject to the power and 
antenna height limits which apply to all licensees operating along the 
border. Furthermore, the Bureau corrects a typo in Table C7 of Section 
90.619(c) which lists channels available for licensing in the General 
Category along the U.S.-Canada border. We certify that none of these 
clarifications or corrections will have a significant impact on a 
substantial number of small entities.

C. Report to Congress

    16. The Commission will send a copy of the Fourth MO&O, including 
the Final Regulatory Flexibility Certification, in a report to be sent 
to Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    17. 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, 
this Fourth Memorandum Opinion and Order is adopted.
    18. It is further ordered that the amendments of the Commission's 
rules set forth in the rule changes are adopted, effective July 6, 
2009.
    19. It is further ordered that the Final Regulatory Flexibility 
Certification required by section 604 of the Regulatory Flexibility 
Act, 5 U.S.C. 604, and as set forth in Appendix A herein is adopted.
    20. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Fourth Memorandum Opinion and Order, including the Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.

List of Subjects in 47 CFR Part 90

    Radio.

Federal Communications Commission.
David Furth,
Acting Chief, Public Safety and Homeland Security Bureau.

Rule Changes

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

[[Page 20604]]

1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).

0
2. In Section 90.619, Table C3 in paragraph (c)(2), Table C5 of 
paragraph (c)(5) and the introductory text, Table C7 of paragraph 
(c)(7), and paragraph (c)(11) introductory text are revised to read as 
follows:

Sec.  90.619  Operations within the U.S./Mexico and U.S./Canada border 
areas.

* * * * *
    (c) * * *
    (2) * * *

                 Table C3--Assumed Average Terrain Elevation (AATE) Along the U.S.-Canada Border
----------------------------------------------------------------------------------------------------------------
                                                                       Assumed average terrain elevation
                                                             ---------------------------------------------------
   Longitude ([Phi]) ([deg] West)       Latitude ([Omega])          United States                Canada
                                           ([deg] North)     ---------------------------------------------------
                                                                  Feet        Metres        Feet        Metres
----------------------------------------------------------------------------------------------------------------
65 <= [Phi] < 69....................  [Omega] < 45..........            0            0            0            0
''..................................  45 <= [Omega] < 46....          300           91          300           91
''..................................  [Omega] >= 46.........         1000          305         1000          305
69 <= [Phi] < 73....................  All...................         2000          609         1000          305
73 <= [Phi] < 74....................  ''....................          500          152          500          152
74 <= [Phi] < 78....................  ''....................          250           76          250           76
78 <= [Phi] < 80....................  [Omega] < 43..........          250           76          250           76
''..................................  [Omega] >= 43.........          500          152          500          152
80 <= [Phi] < 90....................  All...................          600          183          600          183
90 <= [Phi] < 98....................  ''....................         1000          305         1000          305
98 <= [Phi] < 102...................  ''....................         1500          457         1500          457
102 <= [Phi] < 108..................  ''....................         2500          762         2500          762
108 <= [Phi] < 111..................  ''....................         3500         1066         3500         1066
111 <= [Phi] < 113..................  ''....................         4000         1219         3500         1066
113 <= [Phi] < 114..................  ''....................         5000         1524         4000         1219
114 <= [Phi] < 121.5................  ''....................         3000          914         3000          914
121.5 <= [Phi] < 127................  ''....................            0            0            0            0
[Phi] >= 127........................  54 <= [Omega] < 56....            0            0            0            0
''..................................  56 <= [Omega] < 58....          500          152         1500          457
''..................................  58 <= [Omega] < 60....            0            0         2000          609
''..................................  60 <= [Omega] < 62....         4000         1219         2500          762
''..................................  62 <= [Omega] < 64....         1600          488         1600          488
''..................................  64 <= [Omega] < 66....         1000          305         2000          609
''..................................  66 <= [Omega] < 68....          750          228          750          228
''..................................  68 <= [Omega] < 69.5..         1500          457          500          152
''..................................  [Omega] >= 69.5.......            0            0            0            0
----------------------------------------------------------------------------------------------------------------

* * * * *
    (5) Stations authorized to operate within 30 kilometers of the 
center city coordinates listed in Table C5 may operate according to the 
band plan for Canadian Border Regions 7A and 7B as indicated below.

                   Table C5--Cities That Are Considered To Fall Within Candian Border Region 7
----------------------------------------------------------------------------------------------------------------
                                                             Coordinates
                Location                -----------------------------------------------------   Canadian border
                                                     Latitude                  Longitude            region
----------------------------------------------------------------------------------------------------------------
Akron, Ohio............................  41[deg]05[min]00.2[sec] N        81[deg]30[min]39.4                  7A
                                                                                     [sec] W
Youngstown, Ohio.......................  41[deg]05[min]57.2[sec] N        80[deg]39[min]01.3                  7A
                                                                                     [sec] W
Syracuse, New York.....................  43[deg]03[min]04.2[sec] N        76[deg]09[min]12.7                  7B
                                                                                     [sec] W
----------------------------------------------------------------------------------------------------------------

* * * * *
    (7) * * *

   Table C7--General Category 806-821/851-866 MHz Band Channels in the
                          Canada Border Regions
------------------------------------------------------------------------
                                                        General category
                                   General category      channels where
                                  channels where 800      800 MHz high
      Canada border region         MHz high density     density cellular
                                 cellular systems are     systems are
                                      prohibited           permitted
------------------------------------------------------------------------
Regions 1, 4, 5 and 6..........               261-560  561-710
Region 2.......................               231-620  621-710
Region 3.......................               321-500  509-710
Regions 7A and 8...............      231-260, 511-550  None
Region 7B......................               511-550  None
------------------------------------------------------------------------


[[Page 20605]]

* * * * *
    (11) In Canada Border Regions 1, 2, 3, 4, 5 and 6, the following 
General Category channels are available for licensing to all entities 
except as described below in paragraphs (c)(11)(i) and (c)(11)(ii): in 
Regions 1, 4, 5 and 6, channels 261-560; in Region 2, channels 231-620 
and in Region 3, channels 321-500.
* * * * *
[FR Doc. E9-10324 Filed 5-4-09; 8:45 am]
BILLING CODE 6712-01-P