[Federal Register Volume 75, Number 14 (Friday, January 22, 2010)]
[Proposed Rules]
[Pages 3682-3693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1149]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 15

 [WT Docket Nos. 08-166, 08-167, and ET Docket No. 10-24; FCC 10-16]


Revisions to Rules Authorizing the Operation of Low Power 
Auxiliary Stations in the 698-806 MHz Band; Public Interest Spectrum 
Coalition, Petition for Rulemaking Regarding Low Power Auxiliary 
Stations, Including Wireless Microphones, and the Digital Television 
Transition

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

SUMMARY: In this Further Notice of Proposed Rulemaking (FNPRM) the 
Commission seeks to refine and update its rules governing the use of 
wireless microphones, seeking comment on a range of issues concerning 
the operation of these devices in the core TV bands.

DATES: Interested parties may file comments on or before February 22, 
2010, and reply comments on or before March 15, 2010.

ADDRESSES: You may submit comments, identified by WT Docket No. 08-166, 
08-167 and ET Docket No. 10-24, by any of the following methods:
    [dec222] Federal eRulemaking Portal: 
http:[sol][sol]www.regulations.gov. Follow the instructions for 
submitting comments.
    [dec222] Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    [dec222] Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    [dec222] 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: Paul D'Ari, Wireless 
Telecommunications Bureau, (202) 418-1550, e-mail [email protected], or 
Hugh L. Van Tuyl, Office of Engineering and Technology, (202) 418-7506, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's rules 
noted in the Report and Order and Further Notice of Proposed Rulemaking 
in WT Docket Nos. 08-166 and 08-167, ET Docket No.10-24, and FCC 10-16, 
adopted January 14, 2010, and released on January 15, 2010. This 
summary should be read with its companion document, the Report and 
Order summary published elsewhere in this issue of the Federal 
Register. The full text of the Report and Order and FNPRM is available 
for public inspection and copying during business hours in the FCC 
Reference Information Center, Portals II, 445 12th Street SW., Room CY-
A257, Washington, DC 20554. It also may be purchased from the 
Commission's duplicating contractor at Portals II, 445 12th Street SW., 
Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-
5563, or e-mail [email protected]. Copies of the public notice also may 
be obtained via the Commission's Electronic Comment Filing System 
(ECFS) by entering the docket numbers, WT Docket No. 08-166, WT Docket 
No. 08-167, and ET Docket No. 10-24. Additionally, the complete item is 
available on the Federal Communications Commission's Web site at http://www.fcc.gov.

Synopsis of the Further Notice of Proposed Rulemaking Section of the 
Report and Order and Further Notice of Proposed Rulemaking

I. Introduction

    1. In this Further Notice of Proposed Rulemaking (FNPRM), the 
Commission addresses the use of wireless low power auxiliary stations, 
including wireless microphones that operate on the TV bands by entities 
that are not eligible for a part 74 low power auxiliary station 
license. In light of the important functions that these types of 
devices provide to the public, the Commission propose that the 
Commission should revise its rules to permit the use of wireless 
microphones and other low power audio devices in the core TV bands on 
an unlicensed basis under part 15 of the rules by entities that are not 
currently eligible for licensing under part 74, Subpart H of the rules. 
The Commission also proposes to adopt technical rules for such 
operation under part 15. In addition, the Commission seeks comment on 
whether to provide for some expansion of the eligibility under part 74, 
Subpart H of the rules to create additional categories of licensed use 
of wireless microphones or other low power auxiliary stations. The 
Commission also seeks comment on the adoption in its rules marketing 
and labeling requirements, including possible requirements pertaining 
to part 74 low power auxiliary stations that could help ensure that 
ineligible entities do not obtain such devices. Consistent with the 
Commissions broader efforts to manage spectrum as effectively and 
efficiently as possible, the Commission also seek comment on possible 
long-term reform, based in part on technological innovation such as 
digital technology, that would enable wireless microphones to operate 
more efficiently and with improved immunity to harmful interference, 
thereby increasing the availability of spectrum for wireless microphone 
and other uses. Finally, the Commission seeks comment on whether there 
are any changes it could make to other rule parts, including part 90, 
that would address the needs of wireless microphone users.
    2. As discussed in the Report and Order, there are several reasons 
why this is an appropriate time for the

[[Page 3683]]

Commission to examine, in a comprehensive fashion, the rules for 
wireless microphones in the TV bands. In addition to those discussed 
above, the Commission adopted rules in November 2008 in the TV White 
Spaces Second Report and Order to permit new types of devices to 
operate on an unlicensed basis in vacant ``white spaces'' spectrum in 
the TV bands. These ``TV Band Devices'' are regulated under part 15 of 
the Commission's rules. The rules require TV Band Devices to protect 
licensed operations in the TV bands, including wireless microphones and 
other part 74 low power auxiliary stations. A number of petitions for 
reconsideration of the TV White Spaces Second Report and Order raise 
issues related to the protections afforded wireless microphones in that 
order. Although the issues in these petitions for reconsideration and 
the proposals in this FNPRM are related, the Commission does not 
address herein the specific issues raised in the petitions for 
reconsideration of the rules regarding wireless microphone operations 
and TV Band Devices. Rather, the proposals and other issues in this 
FNPRM are intended to balance the needs of various wireless microphone 
users, in particular, with other important uses of the spectrum, 
including new unlicensed devices that can be used for broadband and 
other applications in portions of the TV bands.

A. Operation in the TV Bands

1. Unlicensed Operation Under Part 15
    3. The Commission seeks comment on allowing wireless microphones to 
operate on an unlicensed basis in the TV bands under part 15 of the 
rules generally, the technical proposals discussed herein, and the 
other specific proposals that commenters and other interested parties 
have made in the record with respect to permitting wireless microphones 
to operate under part 15 of the Commission's rules.
    4. Many users may need only a single or a small number of wireless 
microphones operating simultaneously, and only one or two vacant TV 
channels may be required for such users. Even with TV Band Devices 
operating in the TV bands, the rules that the Commission adopted in the 
``white spaces'' proceeding are designed to ensure that there will be 
one or more TV channels available for wireless microphones at most 
locations. Specifically, only fixed TV Band Devices may operate on 
channels below 21, and fixed TV Band Devices are not permitted to 
operate adjacent to occupied TV channels, whereas wireless microphones 
may do so. Thus, at any given location some TV channels cannot be used 
by TV Band Devices and should be available for wireless microphones. In 
addition, in the 13 metropolitan areas where the Private Land Mobile 
and Commercial Mobile Radio Services are permitted to operate on 
channels 14-20, TV Band Devices are not permitted to operate on the 
first vacant TV channel above and below channel 37, thus leaving them 
available for wireless microphones. The Commission seeks comment on 
these assumptions and whether allowing wireless microphones to operate 
on a non-licensed basis in the TV bands under part 15 of the rules may 
meet the needs of the vast majority of wireless microphone users.
    5. In addition, the Commission proposes technical rules for the 
operation of wireless microphones as unlicensed devices under part 15 
of the rules. The Commission proposes to adopt the term ``Wireless 
Audio Devices'' for such devices and to define them as intentional 
radiators used to transmit voice, music or other audio material over 
short distances. Under this proposal, transmissions would be allowed to 
use either analog or digital modulation techniques. To ensure that such 
devices are used only for their intended purpose of transmitting audio 
material, the Commission proposes to prohibit data transmissions except 
for short data strings such as recognition codes necessary to ensure 
the functionality of a system. The Commission also proposes to prohibit 
transmission of audio material to the public switched telephone network 
and private and commercial wireless systems and networks to prevent 
Wireless Audio Devices from being used for applications such as 
wireless headsets for use with cellular phones, cordless phones and 
similar devices. Devices that transmit data or operate as telephones 
can operate under the part 15 TV band device rules or other rule parts, 
e.g., Section 15.247 or 15.249. The Commission seeks comment on the 
definition and the proposals. In particular the Commission seeks 
comment on whether its proposed definition of Wireless Audio Devices is 
overly broad and could enable a proliferation of devices in the TV 
bands that already have suitable provisions to operate in other bands. 
If so, the Commission seeks comment on whether it should specifically 
limit the applicability of the rules to wireless microphones and how 
precisely they should be defined. Additionally, the Commission seeks 
comment on whether any other specifications or restrictions are needed, 
such as limiting devices to one-way operation.
    6. The Commission is not proposing to allow operation under the 
part 15 rules of unlicensed video devices similar in fashion to those 
used by motion picture and television producers as an aid in composing 
camera shots under the part 74 Wireless Assist Video Devices rules. No 
party has indicated that there is a need to permit the operation of 
similar devices by parties other than those eligible for licensing 
under part 74. Further, part 15 already allows devices to operate with 
sufficient bandwidth to transmit video in a number of bands, albeit at 
a lower power level or with different technical requirements from part 
74, including the 902-928 MHz and 2400-2483.5 MHz bands. In addition, 
part 15 allows devices to operate in the TV bands under the TV Band 
Device rules. The Commission invites comment.
    7. The technical rules the Commission is proposing for unlicensed 
Wireless Audio Devices are in many respects similar to the technical 
rules applicable to wireless microphones licensed under part 74 as low 
power auxiliary stations. The Commission is making this proposal 
because these part 74 rules have been used in the development of a wide 
variety of wireless microphones that consumers have found useful and 
that apparently are capable of operating in the TV bands without 
interference. Further, by modeling the proposed part 15 rules after the 
technical features of the part 74 rules, the Commission expects that 
most manufacturers will be able to obtain approval for equipment with 
few or no modifications from currently available designs. The 
Commission is proposing to place the technical requirements for 
Wireless Audio Devices in a new section in part 15, Subpart C, which 
contains the rules for intentional radiators (see proposed rules).
    8. The Commission proposes to allow Wireless Audio Devices to 
operate in the core TV bands spectrum on channels 2-51 (excluding 
channel 37, which is allocated for non-broadcast purposes nationwide). 
The Commission proposes to prohibit operation of Wireless Audio Devices 
on channel 17 in Hawaii, which is allocated for non-broadcast purposes. 
To prevent interference to co-channel TV stations, the Commission 
proposes to prohibit operation of Wireless Audio Devices co-channel to 
operating TV stations at the following distances, which are the same 
separation distances required for part 74 wireless microphones.


[[Page 3684]]


 Channels 2-4 (54-72 MHz) and 5-6 (76-88 MHz)
    [cir] Zone I: 105 km (65 miles)
    [cir] Zones II and III: 129 km (80 miles)
 Channels 7-13 (174-216 MHz)
    [cir] Zone I: 97 km (60 miles)
    [cir] Zones II and III: 129 km (80 miles)
 Channels 14-36 (470-608 MHz) and 38-51 (614-698 MHz)
    [cir] All zones: 113 km (70 miles)

    9. The Commission proposes to permit Wireless Audio Devices to 
operate with a power level to the antenna of up to 50 milliwatts in 
both the VHF and UHF TV bands. The Commission notes that the part 74 
rules permit wireless microphones to operate on VHF TV channels with a 
power level to the antenna of 50 milliwatts and on UHF channels with a 
power level of 250 milliwatts. However, most wireless microphones 
currently operate at a lower power level to increase battery life and 
because higher power is not necessary for most applications. For 
example, Shure has indicated that the majority of wireless microphones 
operate with a power level between 10 and 50 milliwatts. Therefore, the 
Commissions proposed power level may be appropriate for most users, 
particularly because the Commission expect that parties using part 15 
wireless microphones will typically be entities operating in smaller 
venues that do not require the longer range operation that higher power 
allows. In this regard, the Commission note that devices authorized 
under part 74 as low power auxiliary stations are ``intended to 
transmit over distances of approximately 100 meters'' and may operate 
with a power level of 250 milliwatts. The Commission anticipates that 
wireless microphones operating up to 50 milliwatts would transmit over 
a shorter distance. The Commission seeks comment on this proposal. The 
Commission also seeks comment on whether the equipment certification 
rules should prevent component parts such as amplifiers from being 
attached after market to a microphone and whether the rules should 
specify a maximum field strength or other emission limits for 
equipment.
    10. The Commission proposes to require Wireless Audio Devices to 
comply with the same channelization, frequency stability, and bandwidth 
requirements as permitted under the technical rules for part 74 
wireless microphones. Specifically, the Commission proposes to require 
that operation be offset from the upper or lower channel edge by 25 kHz 
or an integral multiple thereof and that the operating frequency 
tolerance be 0.005%. The Commission also proposes to specify that one 
or more adjacent 25 kHz segments within a TV channel may be combined to 
form an operating channel with a maximum bandwidth not to exceed 200 
kHz. Consistent with the measurement requirements for other part 15 
transmitters, the Commission further propose to require that the 
frequency tolerance be maintained over a temperature variation of -20 
degrees to +50 degrees C at normal supply voltage, for a variation in 
the supply voltage from 85% to 115% of the rated supply voltage at a 
temperature of 20 degrees C, and that battery operated equipment be 
tested using a new battery. The Commission expect that the proposed 25 
kHz offset requirement would prevent wireless microphones from 
operating at the edge of a TV channel where they could interfere with 
TV stations on adjacent channels, and the proposed frequency tolerance 
requirement would ensure that devices do not drift from the designated 
frequencies. The limit on the bandwidth that a wireless microphone may 
occupy will leave room for multiple microphones within a channel. The 
Commission seeks comment on these proposals.
    11. The Commission proposes to require that out-of-band emissions 
from Wireless Audio Devices comply with the same emission limits that 
apply to part 74 wireless microphones. Specifically, the Commission 
proposes to require that the mean power of out-of-band emissions comply 
with the following:
     On any frequency removed from the operating frequency by 
more than 50% and up to 100% of the authorized bandwidth: At least 25 
dB;
     On any frequency removed from the operating frequency by 
more than 100% and up to 250% of the authorized bandwidth: At least 35 
dB;
     On any frequency removed from the operating frequency by 
more than 250% of the authorized bandwidth: 43+10 log P dB where P is 
the mean output power in watts.
    12. The Commission seeks comment on whether these out-of-band 
emission levels are appropriate. The Commission also seeks comment on 
whether it should apply the Section 15.209 limits outside the TV 
channel where a wireless microphone operates. Furthermore, the 
Commission seeks comment on whether these out-of-band emissions are 
adequate to protect both land mobile systems operating in the TV bands 
and new services operating on or within TV channel 52, 698-704 MHz, and 
on other frequencies in the 700 MHz Band.
    13. The Commission seeks comment on whether the Commission should 
prohibit Wireless Audio Devices from operating on co-channel basis with 
land mobile stations. The Commission also seeks comment on whether the 
Commission should adopt any other technical rules to prevent 
interference to land mobile systems operating in the TV bands. In 
addition, the Commission seeks comment on whether the Commission needs 
to adopt isolation distances from the land mobile operations, similar 
to those proposed to protect TV stations. In addition, the Commission 
seeks comment on whether the Commission needs to adopt similar rules to 
protect new services operating on or within Channel 52 (698-704 MHz), 
or on other frequencies in the 700 MHz Band.
    14. The Commission seeks comment on its assessment that the rules 
adopted for TV Band Devices are not likely to be suitable for Wireless 
Audio Devices. For example, TV Band Devices are required to have 
geolocation capability and the ability to connect to the Internet to 
register with a central data base. If wireless microphone ``features'' 
were to be added to these devices, it might result in a substantial 
increase in costs for these devices. Certain features currently 
required for TV Band Devices, such as periodic sensing of the airwaves 
for other devices, may also be incompatible with the operation of a 
real-time always-on device such as a wireless microphone. In addition, 
the Commission observes that there are similarities between the rules 
the Commission are proposing for wireless audio devices and the rules 
that were adopted for TV Band Devices. For example, the Commission 
allowed TV band personal/portable devices operating on an adjacent TV 
channel to use a power of up to 40 mW, whereas the Commission is 
proposing to allow wireless audio devices to use a power of up to 50 
mW. These similarities mean that, from a power and spectrum sharing 
standpoint, one type of device should not have a significant advantage 
over the other. The Commission invites comment on this assessment.
    15. The Commission propose to require devices that have already 
been certificated under the procedures established for part 74 devices 
and that will be marketed for operation under part 15 to obtain a new 
equipment authorization to ensure compliance with whatever rules the 
Commission may adopt in this proceeding. The nature of the filings, 
such as whether new test data may need to be submitted, will depend on 
whether the technical rules

[[Page 3685]]

the Commission adopt are identical to or different from part 74.
    16. If the Commission were to adopt technical rules for operation 
under part 15 that are different from the existing part 74 rules, the 
Commission proposes to allow a transition period where the existing 
equipment could be marketed and operated under part 15 before obtaining 
a new equipment authorization. Typically design and manufacturing 
cycles take 1 to 2 years. The Commission invites comment on whether 
there should be a transition period and, if so, what should be the 
length of the transition period? The Commission also seeks comment on 
whether the Commission should apply the transition to the date after 
which a product is marketed, a date after which the product is 
manufactured or imported, or some other measure.
    17. Finally, the Commission seeks comment on whether any other 
technical requirements need to be specified for Wireless Audio Devices. 
For example, the part 74 rules for low power auxiliary stations have 
additional requirements for wireless microphones including a maximum 
frequency deviation specification when frequency modulation is used. 
Additionally, part 74 states that a transmitter may be either frequency 
synthesized or crystal controlled. The Commission seeks comment on 
whether these or any other requirements should be incorporated into the 
part 15 rules for Wireless Audio Devices.
2. Licensed Operation Under Part 74
    18. Certain users of wireless microphones that are not currently 
eligible for a low power auxiliary station license under part 74 may 
have needs that are similar to existing eligible licensees and may have 
a need for the interference protection that a license affords. In this 
section, the Commission seeks comment on whether to revise its rules 
and provide for a limited expansion of eligibility that would permit 
such users to hold a part 74 license in the TV bands. The Commission 
also seeks comment on whether license eligibility should be expanded to 
permit the use of low power auxiliary stations inside nuclear power 
plants. In examining whether to expand licensee eligibility, the 
Commission must balance the needs of the different users of the TV band 
spectrum.
    19. The Commission seeks comment on the extent to which part 74 
eligibility for licensing should be expanded, if the Commission decides 
to do so. For example, should such eligibility be limited to include 
large theaters, entertainment complexes, sporting arenas, and religious 
facilities, because these large venues may require multiple vacant TV 
channels to accommodate all of the wireless microphones needed and they 
may need the additional protections afforded part 74, Subpart H 
licensees in the TV bands? The Commission seek comment on whether to 
revise its rules in this manner, and how best to specify which 
particular entities, and under what circumstances, they should be 
eligible for a license. As discussed above, a number of commenters and 
other parties have urged the Commission to expand eligibility for part 
74 licenses to varying degrees, and the Commission seek comment as well 
on those expanded eligibility proposals.
    20. Some wireless microphone operators, such as certain producers 
of live professional arts, entertainment, and sporting events may 
require multiple vacant TV channels to accommodate all of the wireless 
microphones needed. Many of these events are broadcast or recorded, and 
thus producers of these events may already be eligible for a part 74 
license. On the other hand, some of these events that rely on numerous 
wireless microphones are live programs that will not be broadcast or 
recorded, and thus producers of these live events are not currently 
eligible for a part 74 license, but yet may have the same wireless 
microphone requirements. Live programs of professional arts, 
entertainment, and sporting events that require multiple vacant TV 
channels to accommodate numerous wireless microphones may be 
sufficiently analogous to the uses now permitted by part 74 as to be a 
reasonable basis for expanding licensee eligibility. Moreover, such 
operations may warrant the interference protection that can only be 
assured under a license. For example, the Commissions provisions for TV 
Band Devices provide for licensed low power auxiliary stations to be 
registered in a data base to assure protection against harmful 
interference. The Commission recognize, however, that some of these 
live arts, entertainment, and sporting events may only require the use 
of a few wireless microphones and thus have greater flexibility to 
select TV band channels that are free of interference. Events that use 
only a few wireless microphones may not require the assurance of 
interference protection afforded by a license.
    21. Certain other wireless microphone uses, such as those at 
services conducted by religious organizations, may also warrant 
provisions for licensed operation under part 74 because they bear 
important similarities to the uses now permitted by part 74. For 
example, some events at venues used for religious purposes also may 
require multiple vacant TV channels to accommodate all of the wireless 
microphones needed. While it is not clear from the record currently 
before us, in some cases religious organizations may already be 
eligible for a part 74 license if they broadcast or record events at 
religious venues and they hold a recognized broadcast license or 
qualify as television or motion picture producers under the rules. In 
other cases, as with theatrical productions and sporting events, some 
events at religious facilities are live programs that will not be 
broadcast or recorded, and thus producers of these live events are not 
currently eligible for a part 74 license, but yet have the same 
wireless microphone requirements. In contrast, it may be that at many 
religious facilities services are conducted using only a few wireless 
microphones and may have greater flexibility to select TV channels that 
are free of interference. These religious facilities may not require 
the assurance of interference protection afforded by a license.
    22. The Commission seeks comment on whether to authorize licensed 
wireless microphone use by the entities discussed above, at large 
theaters, entertainment complexes, sporting arenas, and religious 
facilities, and whether there is a need by these entities for the 
additional protections afforded part 74, Subpart H licensees in the TV 
bands. In this regard, the Commission seeks comment on how the 
Commission could more completely and precisely define the types of 
additional entities eligible for licensing so that the Commission can 
easily implement the licensing criteria that the Commission adopts for 
entities that merit licensee status while also ensuring that such 
status is limited to only eligible entities. For example, how should 
the Commission define professional arts, entertainment, or sporting 
events or eligible religious facilities? Should the Commission, for 
instance, base the eligibility on the size of the venue, such as 
specifying a minimum seating capacity? Should the Commission base 
eligibility on a minimum number of wireless microphones that these 
entities use on a regular basis, and if so, what should that number be? 
Should the Commission establish criteria for determining which specific 
users are eligible for a license and simply leave it, for example, to 
the religious organization or producer of live events to determine 
whether they need the

[[Page 3686]]

interference protection of a license? What other characteristics of the 
entities that potentially could be licensed if eligibility is expanded 
should be specified in the rules? Should licensing be limited to the 
owner or operator of a theater or stadium or religious facility or 
should the Commission allow a performing group or sports team or 
religious organization to hold the license for a specific venue at a 
specific time? Should it make a difference if the use is permanently 
housed at the venue (e.g., the home team at a specific stadium)? If the 
Commission were to expand license eligibility, the Commission also 
seeks comment on what modifications the Commission should make to the 
rules regarding scope of service and permissible transmissions.
    23. The Commission also invites comment on the impact of expanding 
part 74 licensing to include additional entities on the availability of 
spectrum for use by TV Band Devices. Would limiting these new 
licensees' use to certain venues--such as large theaters, entertainment 
complexes, sporting arenas, and religious facilities--protect 
microphone use only at locations that can easily be identified and 
included in the TV Band Device database and only for particular dates/
times and frequencies coinciding with actual use? The Commission ask 
that commenters address the practicability of producers of live arts, 
sporting events, and religious organizations providing up-to-date 
information on venues and times of operation to the TV Band Device 
database on an ongoing basis, and how best to ensure that they do so. 
The Commission is particularly concerned that licensees may find it 
impractical to maintain the database with up-to-date information and 
instead may call for interference protection on all channels on a 
continuous basis, which could completely block access by TV Band 
Devices and therefore may lead to less efficient use of the spectrum. 
The Commission invites comment on this analysis.
    24. The Commission also seeks comment on whether the Commission 
should modify the eligibility requirements for a part 74 license to 
include other entities that use wireless microphones, such as those 
operating at convention or trade shows, certain other cultural events, 
or governmental or educational institutions. Do these or other 
additional entities need interference protection from TV Band Devices 
that is afforded to part 74, Subpart H licensees? Or would, instead, 
the operation of wireless microphones by these and other users 
effectively be accommodated were they to operate on an unlicensed basis 
under part 15, similar to the TV Band Devices? To the extent that 
commenters propose that these or other entities be eligible for part 74 
licensing, the Commission seeks comment on which particular entities 
merit protection. The Commission also seek comment on how, precisely, 
the Commission should define any additional class of entity that should 
be eligible to hold a license and the protections afforded by the 
database. As discussed above, the Commission seeks comment on whether 
wireless microphone use would be protected at locations that can easily 
be identified and included in the TV Band Device database and only for 
particular dates/times and frequencies coinciding with actual use. 
Commenters should address the practicality of whether any additional 
entities would provide up-to-date information on venues and times of 
operation to the TV Band Device database on an ongoing basis, such that 
they would only have database protection at times of use and not 
otherwise block access to the spectrum for use by TV Band Devices, 
which could lead to inefficient use of the TV bands spectrum.
    25. The Commission seeks to balance the needs of potential new 
classes of wireless microphone licensees with other users of the TV 
bands. The Commission note that, while some commenters have advocated 
for changes in the eligibility requirements to allow particular groups 
of users to operate wireless microphones in the TV bands, no commenter 
has advocated allowing anyone who desires to operate a wireless 
microphone to apply for or obtain a part 74 license and associated 
terms and conditions. If the Commission were to expand part 74, Subpart 
H to include all of the existing users and applications, the 
eligibility would be expanded so extensively that virtually anyone 
would be eligible for a license. The Commission is concerned that such 
an approach may not be viable. Because part 74 licensees have 
protection against interference from unlicensed part 15 devices, such a 
broad expansion of eligibility could seriously reduce the amount of 
spectrum available for unlicensed TV Band Devices. This could be 
particularly true in heavily populated places, where there might be 
significant demand for operation of TV Band Devices as well. This 
expansion would significantly increase the number of part 74 licensees 
submitting information for inclusion in the TV Band Device database, 
thus increasing the cost and complexity of operating the database. The 
Commission invites comment on this analysis and the impact of expanding 
eligibility on the viability of TV Band Devices.
    26. The Commission notes that any expansion of the part 74 license 
eligibility will have an impact on the primary users of the TV bands 
(e.g., TV broadcasting stations) as well as on unlicensed wireless 
microphones and TV Band Devices that will be introduced in the future. 
Is it practical for newly eligible users to comply with all of the part 
74 requirements that apply to existing eligibles, such as the 
requirement to coordinate frequencies? How might an expansion of 
eligibility affect the viability of frequency coordination for all of 
the existing eligible users? Should the Commission place any additional 
requirements or limitations, for example, on the amount of spectrum 
that can be used in a given location by the newly eligible users? 
Consistent with the current Section 74.832(d) rule, which limits 
operation of low power auxiliary stations by non-broadcast entities to 
frequencies in the TV bands, the Commission seek comment on whether any 
expanded part 74 eligibility cover operations in only the TV bands and 
not the non-TV band frequencies listed in Section 74.802(a).
    27. The Commission underscores that irrespective of whether it 
revises the eligibility requirements under part 74, entities that use 
wireless microphones would be permitted to operate wireless microphones 
under the Commission's proposed part 15 rules, and also under part 90 
which is discussed below. In short, even if the Commission does not 
significantly expand eligibility under part 74, the Commission notes 
that users would still be able to operate wireless microphones under 
the Commission's proposed part 15 rules or under the part 90 rules.
    28. License Terms. The Commission seeks comment on the length of 
initial and renewal license terms for authorizations issued to entities 
that obtain licenses under any expanded eligibility categories that the 
Commission adopts under part 74 of the Commission's rules. Under 
Section 74.15 of the rules, low power auxiliary station licensees have 
license terms that either run concurrently with the license of the 
associated broadcast station, or for a period running concurrently with 
the normal licensing period for broadcast stations located in the same 
area of operation. Broadcast or low power TV station licensees are 
issued low power auxiliary station licenses with a term that runs 
concurrently with the license term of the associated broadcast station. 
Broadcast network

[[Page 3687]]

entities, cable television system operators, motion picture producers, 
and television program producers have license terms that run 
concurrently with the normal licensing period for broadcast stations 
located in the same area of operation. This results in an initial term 
that is no more than eight years but may be substantially less than 
eight years, because low power auxiliary station licenses may be 
obtained in the middle of the license terms of broadcast stations 
located in the same area of operation.
    29. In this FNPRM, the Commission is seeking comment on a limited 
expansion of the eligibility provisions for part 74, Subpart H 
licenses. In the event that there is an expansion in eligibility, the 
Commission seeks comment on whether the license terms for any new 
classes of eligible users of low power auxiliary stations should be the 
same as the license terms that currently apply to part 74, Subpart H 
licensees, as discussed above. The Commission also seeks comment on 
whether some other license term should apply to these new eligible 
users in the event that the Commission revises the eligibility 
categories. The Commission notes that if the Commission were to apply 
the existing rules governing license terms for low power auxiliary 
stations, their license terms would run concurrently with the normal 
licensing period for their local broadcast stations. In some cases, 
this would result in a license term that would be substantially less 
than the local broadcaster's term of eight years, because some low 
power auxiliary station licensees may obtain their licenses in the 
middle of their local broadcaster's license term. The Commission 
invites comment on whether some other license term should apply to 
parties that would be eligible under revised rules. For example, should 
licenses obtained by a newly eligible person or organization be issued 
for a term not to exceed ten years from the date of initial issuance or 
renewal or should some other period be adopted and, if so, what should 
be the length of the license term? The Commission note that the 
Commission's rules generally provide for a license term of ten years 
for wireless licenses.
    30. Nuclear Energy Institute and Utilities Telecom Council Petition 
for Waiver. The Commission note that the Nuclear Energy Institute and 
Utilities Telecom Council (NEI/UTC) has recently petitioned the 
Commission for a waiver of the ``allocation and licensing provisions'' 
of the part 2 and 90 rules to permit ``Power Licensees'' as defined in 
Section 90.7 of the Commission's rules to obtain licenses under part 90 
for the use of certain equipment certificated for use under Subpart H 
of part 74 of the rules, inside nuclear power plants. The Commission 
seeks comment on whether it would serve the public interest to extend 
the license eligibility under Subpart H of part 74 of the rules to 
permit the use of low power auxiliary stations inside nuclear power 
plants. How should the Commission define eligibility for such licenses? 
Are there any specific concerns associated with permitting operations 
under Subpart H of part 74 inside commercial nuclear power plants or 
any special conditions that should apply to any license for such use? 
To the extent the Commission may decide to expand license eligibility 
to include users in commercial nuclear power plants, the Commission 
seeks comment on the spectrum bands that should be made available for 
this category of users. The Commission also seeks comment on whether 
any other modification to the part 74 rules would be necessary to 
accommodate such use inside commercial nuclear power plants.
3. Marketing and Labeling Issues for Part 74 Low Power Auxiliary 
Stations
    31. The Commission seeks comment on issues related to the marketing 
of part 74 low power auxiliary stations that could help ensure that 
entities that are not eligible to operate these devices do not purchase 
them. The Commission expects that some devices will be certificated to 
operate under only part 74 of the rules, either because the output 
power level exceeds the part 15 limits or simply because the 
manufacturer chose not to obtain a part 15 certification. In seeking 
comment, the Commission recognize that, under its proposed dual 
regulatory approach for operating wireless microphones in the TV bands, 
it is possible that some devices could meet the technical requirements 
in both parts 15 and 74 of the rules and be certificated to operate 
under both of those parts. Such devices could be operated by any party 
without a license, and by eligible parties that have obtained a part 74 
license.
    32. The Commission seeks comment on whether a marketing restriction 
should be imposed on manufacturers with respect to equipment that is 
certificated for use by part 74 licensees. For example, the Commission 
seeks comment on whether the Commission should adopt a rule requiring 
that the marketing of equipment certificated under part 74, Subpart H 
of the Commission's rules be directed solely to parties eligible to 
operate the equipment. The Commission also seeks comment on whether, as 
a part of such a rule, that the Commission provide that marketing of 
such equipment in any other manner may be considered grounds for 
revocation of the grant of certification issued for the equipment. In 
addition, The Commission seek comment on whether some other 
restriction, or additional restrictions, should be adopted, including 
record keeping requirements for manufacturers to track to whom their 
products are marketed, or to ensure that these devices are marketed in 
a manner that is consistent with the restrictions on their use.
    33. The Commission seeks further comment on whether any rules are 
necessary to ensure that purchasers of low power auxiliary stations 
that are certificated under only part 74 of the rules are made aware of 
the part 74 licensing requirements. For example, should manufacturers 
be required to provide a label visible at the time of purchase advising 
of the requirement to obtain a license? Should there be a label on the 
device itself indicating that a license is required? Should the 
instruction manual contain advisory information about the licensing 
requirements? What labeling or advisory information should be required?
    34. Similarly, the Commission seeks comment on any responsibility 
that manufacturers, retailers, and distributors should have to notify 
customers about the licensing requirements or steps they could take 
ensure that low power auxiliary stations are not marketed to ineligible 
users. Should there be some form of responsibility or accountability 
placed upon one or more of these entities at the point of sale and, if 
so, what should it be? The Commission seeks comment, for example, on 
whether the Commission should prohibit manufactures, retailers and 
distributors from selling or distributing low power auxiliary stations, 
including wireless microphones unless such sale is to a party that has 
committed in writing that the party is a bona fide reseller or a party 
eligible to be a low power auxiliary station licensee pursuant to part 
74 of the Commission's rules. The Commission also seeks comment on 
whether manufacturers, importers, and retailers should be required to 
retain records of such written commitments for at least two years from 
the date of sale of the device. The Commission also seeks comment on 
whether manufacturers, retailers, or distributors could require a 
facility identification number associated with a Commission license, or 
some other form of identification which shows that the purchaser is a 
licensee. Another

[[Page 3688]]

alternative would be for the manufacturer, retailer, or distributor to 
cross-check a purchaser against information, perhaps in a database 
provided by the Commission, to determine whether a purchaser is an 
eligible user. The Commission seeks comment on whether any of these 
alternatives should be adopted in order to provide a sufficient level 
of responsibility or accountability at the point of sale, or whether 
some variation or some other method should be adopted instead.
4. Possible Longer-Term Solutions
    35. The Commission invites comment on additional changes it should 
consider that could help ensure that a variety of wireless microphone 
uses can best be accommodated with other uses in the bands over the 
longer term, and that spectrum is used efficiently and effectively by 
wireless microphones. Efficient wireless microphone operations should 
increase spectrum availability for other uses, including the continued 
development of wireless broadband. In this FNPRM the Commission 
proposes to allow wireless microphones to operate on an unlicensed 
basis in the TV bands under part 15 of the rules. Under this proposal, 
wireless microphones would share spectrum with TV band devices, and the 
Commission seek comment on the extent to which wireless microphones can 
operate more efficiently in order to make spectrum available for other 
uses.
    36. The Commission note that the majority of wireless microphones 
currently in use are frequency modulated analog devices that operate 
with a bandwidth of up to 200 kHz. For various reasons, such as the 
need to avoid intermodulation interference among the devices, the 
maximum number of wireless microphones that operate simultaneously in a 
6 megahertz TV channel may be as few as six or eight. In other words, 
only 1.2-1.6 megahertz of the 6 megahertz TV channel may only be used 
while the remainder is effectively left fallow. In locations where many 
wireless microphones are being used simultaneously, this can result in 
inefficient use of valuable spectrum. The Commission seeks comment on 
this use of spectrum by wireless microphones, and on what steps the 
Commission can take to ensure that wireless microphones are using 
spectrum more efficiently.
    37. The Commission notes that most other radio communications 
services have shifted from analog to digital technology to improve 
spectrum efficiency and resistance to interference. The Commission 
seeks comment on the state of technological developments that could 
similarly enable wireless microphones to operate more efficiently and/
or improve their immunity to harmful interference, which could make 
more spectrum available for other users. What steps could the 
Commission take that would encourage the use of new digital technology 
or other equipment that would allow more microphones to be used in a 
single channel? The Commission also seeks comment on whether there are 
devices currently available that would provide for such operations, on 
the length of time it may take to transition to such technology, and on 
what incentives the Commission could adopt to facilitate this 
transition.
    38. Finally, the Commission seek comment on any other steps that 
the Commission should take in the long term to encourage technological 
improvements with the goal of ensuring that the core TV spectrum, which 
is shared by many users, is more efficiently used and thus more 
available to a range of users for new and innovative products and 
services. Are there approaches to spectrum management, such as 
authorizing a band manager, that would achieve the efficient use of 
spectrum by these devices?

B. Licensed Operation Under Part 90

    39. The Commission seeks comment on steps the Commission should 
take to revise the part 90 wireless microphone rules to make them more 
useful to wireless microphone users. In particular, the Commission 
seeks comment on why relatively few entities operate under the current 
part 90 rules. For example, are too few frequencies available under 
part 90? Does the narrower bandwidth permitted under part 90 (54 kHz) 
as compared to part 74 (200 kHz) affect the audio quality of part 90 
wireless microphones? Does the part 90 eligibility or licensing 
requirements discourage use of part 90 wireless microphones by some 
parties? Are part 90 wireless microphones readily available to entities 
that wish to purchase them? What rule parts other than part 90 and part 
74 should the Commission consider for licensing wireless microphones?

II. Procedural Matters

Initial Regulatory Flexibility Analysis

    40. As required by the Regulatory Flexibility Act, see 5 U.S.C. 
603, the Commission has prepared an Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities of the policies and rules proposed in this document. Written 
public comments are requested on the IRFA. These comments must be filed 
in accordance with the same filing deadlines as comments filed in 
response to this FNPRM and have a separate and distinct heading 
designating them as responses to the IRFA.
Initial Regulatory Flexibility Analysis
    41. 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 this Further Notice of Proposed Rule 
Making (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 Notice provided in Section V.F.2. 
of the item. The Commission will send a copy of the FNPRM, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the FNPRM and IRFA (or summaries 
thereof) will be published in the Federal Register.

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

    42. The FNPRM addresses the use of wireless low power auxiliary 
stations, including wireless microphones, that operate on TV channels 
2-51, excluding channel 37, (``the TV bands'') by entities that are not 
eligible for a part 74 license. In light of the important functions 
that these types of devices provide to the public, the Commission 
believes that developing rules to provide for the unlicensed use of 
wireless low power auxiliary stations, including wireless microphones, 
in the TV bands would serve the public interest. While wireless 
microphones are available for use on an unlicensed basis in the 49 MHz, 
902-928 MHz and 2.4 GHz bands and on a licensed basis by some entities 
under part 90 in the 170 MHz band, many entities are using wireless 
microphones designed for use in the TV bands on an unauthorized basis. 
The reasons for the use of TV band wireless microphones are varied 
including, for example, the amount of spectrum that is available for 
their use in the TV bands can accommodate multiple microphones at one 
venue and the sound fidelity that is achieved by TV band microphones is 
much higher than that of microphones that operate in other bands.
    43. Certain users of wireless microphones that are not currently 
eligible for a low power auxiliary station

[[Page 3689]]

license under part 74 may have needs that are similar to existing 
eligible licensees and may have a need for the interference protection 
that a license affords. The FNPRM seeks comment on whether to revise 
the Commission's rules to provide for a limited expansion of 
eligibility that would permit such users to hold a part 74 license in 
the TV bands. For example, the FNPRM seeks comment on whether to expand 
eligibility for licensing under part 74, Subpart H of the rules to 
include large theaters, entertainment complexes, sporting arenas, and 
religious facilities. The FNPRM also seeks comment on whether the 
Commission should modify the eligibility requirements for a part 74 
license to include other entities that use wireless microphones, such 
as those operating at convention or trade shows, certain other cultural 
events, or governmental or educational institutions.

B. Legal Basis

    44. The proposed action is authorized under Sections 4(i), 301, 
302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 
1934, as amended, 47 U.S.C. Sections 154(i), 301, 302, 303(e), 303(f), 
303(r), 304 and 307.

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

    45. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the ``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 operations; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    46. Nationwide, there are a total of approximately 29.6 million 
small businesses, according to the SBA. 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 
2002, there were approximately 1.6 million small organizations. The 
term ``small governmental jurisdiction'' is defined generally as 
``governments of cities, towns, townships, villages, school districts, 
or special districts, with a population of less than fifty thousand.'' 
Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States. The Commission 
estimates that, of this total, 84,377 entities were ``small 
governmental jurisdictions.'' Thus, the Commission estimates that most 
governmental jurisdictions are small.
    47. In the Report and Order, the Commission concludes that low 
power auxiliary stations authorized under part 74 of the Commission's 
rules--including wireless microphones--will not be permitted to operate 
in the 700 MHz Band after the DTV transition. The Commission also 
concludes to prohibit the manufacture, import, sale, offer for sale, or 
shipment of devices that operate as low power auxiliary stations in the 
700 MHz Band, effective upon the publication of a summary of the Report 
and Order in the Federal Register. Under Section 74.832 of the 
Commission's rules, only certain entities may be issued licenses 
authorizing the use of low power auxiliary stations. In particular, 
these entities fall within the following categories: (1) Licensees of 
AM, FM, TV, or International broadcast stations or low power TV 
stations; (2) broadcast network entities; (3) certain cable television 
system operators; (4) motion picture and television program producers 
as defined in the rules; and (5) certain entities with specified 
interests in Broadband Radio Service (BRS), Educational Broadcast 
Service (EBS) licenses, i.e., BRS licensees (formerly licensees and 
conditional licensees of stations in the Multipoint Distribution 
Service and Multi-channel Multipoint Distribution Service), or entities 
that hold an executed lease agreement with a BRS licensee or 
conditional licensee or entities that hold an executed lease agreement 
with an Educational Broadcast Service (formerly Instructional 
Television Fixed Service) licensee or permittee.
    48. Radio Stations. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' The SBA has 
established a small business size standard for this category, which is: 
such firms having $7.0 million or less in annual receipts. According to 
Commission staff review of BIA Publications, Inc.'s Master Access Radio 
Analyzer Database on March 31, 2005, about 10,840 (95%) of 11,410 
commercial radio stations had revenues of $6 million or less. 
Therefore, the majority of such entities are small entities.
    49. The Commission note, however, that in assessing whether a 
business concern qualifies as small under the above size standard, 
business affiliations must be included. In addition, to be determined 
to be a ``small business,'' the entity may not be dominant in its field 
of operation. The Commission notes that it is difficult at times to 
assess these criteria in the context of media entities, and the 
Commission's estimate of small businesses may therefore be over-
inclusive.
    50. Television Broadcasting. The Census Bureau defines this 
category as follows: ``This industry comprises establishments primarily 
engaged in broadcasting images together with sound. These 
establishments operate television broadcasting studios and facilities 
for the programming and transmission of programs to the public.'' The 
SBA has created a small business size standard for Television 
Broadcasting entities, which is: Such firms having $14.0 million or 
less in annual receipts. The Commission has estimated the number of 
licensed commercial television stations to be 1,379. In addition, 
according to Commission staff review of the BIA Publications, Inc.'s 
Master Access Television Analyzer Database on March 30, 2007, about 986 
of an estimated 1,374 commercial television stations (or approximately 
72 percent) had revenues of $13 million or less. The Commission 
therefore estimates that the majority of commercial television 
broadcasters are small entities.
    51. The Commission note, however, that in assessing whether a 
business concern qualifies as small under the above definition, 
business (control) affiliations must be included. The Commission's 
estimate, therefore, likely overstates the number of small entities 
that might be affected by its action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies. In addition, an element of the definition of 
``small business'' is that the entity not be dominant in its field of 
operation. The Commission is unable at this time to define or quantify 
the criteria that would establish whether a specific television station 
is dominant in its field of operation. Accordingly, the estimate of 
small businesses to which rules may apply does not exclude any 
television station from the definition of a small business on this 
basis and is therefore possibly over-inclusive to that extent.
    52. In addition, the Commission has estimated the number of 
licensed

[[Page 3690]]

noncommercial educational (NCE) television stations to be 380. These 
stations are non-profit, and therefore considered to be small entities. 
There are also 2,295 low power television stations (LPTV). Given the 
nature of this service, the Commission will presume that all LPTV 
licensees qualify as small entities under the above SBA small business 
size standard.
    53. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. To gauge small business prevalence for these cable services 
the Commission must, however, use current census data that are based on 
the previous category of Cable and Other Program Distribution and its 
associated size standard; that size standard was: all such firms having 
$13.5 million or less in annual receipts. According to Census Bureau 
data for 2002, there were a total of 1,191 firms in this previous 
category that operated for the entire year. Of this total, 1,087 firms 
had annual receipts of under $10 million, and 43 firms had receipts of 
$10 million or more but less than $25 million. Thus, the majority of 
these firms can be considered small.
    54. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide. Industry data 
indicate that, of 1,076 cable operators nationwide, all but eleven are 
small under this size standard. In addition, under the Commission's 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Industry data indicate that, of 7,208 systems nationwide, 
6,139 systems have fewer than 10,000 subscribers, and an additional 379 
systems have 10,000-19,999 subscribers. Thus, under this second size 
standard, most cable systems are small.
    55. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, which is ``a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that an operator serving 
fewer than 677,000 subscribers shall be deemed a small operator, if its 
annual revenues, when combined with the total annual revenues of all 
its affiliates, do not exceed $250 million in the aggregate. Industry 
data indicate that, of 1,076 cable operators nationwide, all but ten 
are small under this size standard. The Commission note that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million, and therefore the Commission is unable to 
estimate more accurately the number of cable system operators that 
would qualify as small under this size standard.
    56. Motion Picture and Video Producers. This economic census 
category comprises ``establishments primarily engaged in producing, or 
producing and distributing motion pictures, videos, television 
programs, or television commercials.'' The SBA has developed a small 
business size standard for firms within this category, which is: firms 
with $27 million or less in annual receipts. According to Census Bureau 
data for 2002, there were 7,772 firms in this category that operated 
for the entire year. Of this total, 7,685 firms had annual receipts of 
under $25 million and 45 firms had annual receipts of $25 million to 
$49,999,999. Thus, under this category and associated small business 
size standard, the majority of firms can be considered small.
    57. Broadband Radio Service (formerly Multipoint Distribution 
Service) and Educational Broadband Service (formerly Instructional 
Television Fixed Service). Multichannel Multipoint Distribution Service 
(MMDS) systems, often referred to as ``wireless cable,'' transmit video 
programming to subscribers using the microwave frequencies of the 
Multipoint Distribution Service (MDS) and Instructional Television 
Fixed Service (ITFS). In its BRS/EBS Report and Order in WT Docket No. 
03-66, the Commission comprehensively reviewed its policies and rules 
relating to the ITFS and MDS services, and replaced the MDS with the 
Broadband Radio Service and ITFS with the Educational Broadband Service 
in a new band plan at 2495-2690 MHz. In connection with the 1996 MDS 
auction, the Commission defined ``small business'' as an entity that, 
together with its affiliates, has average gross annual revenues that 
are not more than $40 million for the preceding three calendar years. 
The SBA has approved of this standard.
    58. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution, which is: All such 
firms having $13.5 million or less in annual receipts. According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this 
category that operated for the entire year. Of this total, 1,087 firms 
had annual receipts of under $10 million, and 43 firms had receipts of 
$10 million or more but less than $25 million. Thus, under this size 
standard, the majority of firms can be considered small.
    59. Low Power Auxiliary Device Manufacturers: Radio and Television 
Broadcasting and Wireless Communications Equipment Manufacturing. The 
Census Bureau defines this category as follows: ``This industry 
comprises establishments primarily engaged in manufacturing radio and 
television broadcast and wireless communications equipment. Examples of 
products made by these establishments are: transmitting and receiving 
antennas, cable television equipment, GPS equipment, pagers, cellular 
phones, mobile communications equipment, and radio and television 
studio and broadcasting equipment.'' The SBA has developed a small 
business size standard for Radio and Television Broadcasting and 
Wireless Communications Equipment Manufacturing, which is: All such 
firms having 750 or fewer employees. According to Census Bureau data 
for 2002, there were a total of 1,041 establishments in this category 
that operated for the entire year. Of this total, 1,010 had employment 
of less than 500, and an additional 13 had employment of 500 to 999. 
Thus, under this size standard, the majority of firms can be considered 
small.
    60. Low Power Auxiliary Device Manufacturers: Other Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing communications equipment (except telephone apparatus, and 
radio and television broadcast, and wireless communications 
equipment).'' The SBA has developed a small business size standard for 
Other Communications Equipment Manufacturing, which is: All

[[Page 3691]]

such firms having 750 or fewer employees. According to Census Bureau 
data for 2002, there were a total of 503 establishments in this 
category that operated for the entire year. Of this total, 493 had 
employment below 500, and an additional 7 had employment of 500 to 999. 
Thus, under this size standard, the majority of firms can be considered 
small.
    61. Radio, Television, and Other Electronics Stores. The Census 
Bureau defines this economic census category as follows: ``This U.S. 
industry comprises: (1) Establishments known as consumer electronics 
stores primarily engaged in retailing a general line of new consumer-
type electronic products; (2) establishments specializing in retailing 
a single line of consumer-type electronic products (except computers); 
or (3) establishments primarily engaged in retailing these new 
electronic products in combination with repair services.'' The SBA has 
developed a small business size standard for Radio, Television, and 
Other Electronics Stores, which is: all such firms having $8 million or 
less in annual receipts. According to Census Bureau data for 2002, 
there were 10,380 firms in this category that operated for the entire 
year. Of this total, 10,080 firms had annual sales of under $5 million, 
and 177 firms had sales of $5 million or more but less than $10 
million. Thus, the majority of firms in this category can be considered 
small.

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

    62. The FNPRM seeks comment on whether to expand the eligibility to 
operate wireless microphones under part 74 of the rules, and to allow 
wireless microphones to operate in the TV bands under part 15 of the 
rules.
    63. Parties operating low power auxiliary stations in the TV bands 
under part 74 of the rules are required to be licensed. Only entities 
that fall within the following categories are currently eligible for a 
part 74 license: (1) Licensees of AM, FM, TV, or International 
broadcast stations or low power TV stations; (2) broadcast network 
entities; (3) certain cable television system operators; (4) motion 
picture and television program producers as defined in the rules; and 
(5) certain entities with specified interests in Broadband Radio 
Service (BRS) Educational Broadcast Service (EBS) licenses, i.e., BRS 
licensees, or entities that hold an executed lease agreement with a BRS 
licensee or conditional licensee or entities that hold an executed 
lease agreement with an Educational Broadcast Service licensee or 
permittee. The FNPRM seeks comment on whether to revise the 
Commission's rules to provide for a limited expansion of eligibility 
that would permit such users to hold a part 74 license in the TV bands. 
For example, the FNPRM seeks comment on whether to expand the 
eligibility for licensing to allow the use of wireless microphones or 
other low power auxiliary audio devices in large theaters, 
entertainment complexes, sporting arenas, and religious facilities. The 
FNPRM also seeks comment on whether the Commission should modify the 
eligibility requirements for a part 74 license to include other 
entities that use wireless microphones, such as those operating at 
convention or trade shows, certain other cultural events, or 
governmental or educational institutions. If license eligibility is 
expanded, the additional entities eligible for licensing would have to 
apply for a license in the same manner as currently eligible parties.
    64. Most non-licensed transmitters are required to be authorized 
under the Commission's certification procedure as a prerequisite to 
marketing and importation. The FNPRM proposes to allow wireless 
microphones to operate in the TV bands on a non-licensed basis under 
part 15 of the rules, and the proposed new types of wireless 
microphones would be subject to the same certification requirement. 
Operation of part 15 wireless microphones would not be limited to a 
defined group of eligible entities, so parties that are not eligible to 
operate wireless microphones on a licensed basis under part 74 of the 
rules would be able to operate these devices under part 15. The 
proposed technical requirements for part 15 wireless microphones are 
very similar to those for part 74 wireless microphones, except that the 
proposed maximum output power for part 15 wireless microphones is lower 
to reduce the risk of interference. The proposed power level is 50 
milliwatts, while part 74 wireless microphones are permitted to operate 
with 50 milliwatts in the VHF band and 250 milliwatts in the UHF band.
    65. The FNPRM seeks comment on whether a marketing restriction 
should be imposed on manufacturers with respect to equipment that is 
certificated for use by part 74 licensees. For example, the FNPRM seeks 
comment on whether the Commission should adopt a rule requiring that 
the marketing of equipment certificated under part 74, Subpart H of the 
Commission's rules be directed solely to parties eligible to operate 
the equipment.
    66. The FNPRM seeks further comment on whether any rules are 
necessary to ensure that purchasers of low power auxiliary stations 
that are certificated under only part 74 of the rules are made aware of 
the part 74 licensing requirements. For example, the FNPRM seeks 
comment on whether manufacturers should be required to provide a label 
visible at the time of purchase advising of the requirement to obtain a 
license? Similarly, the FNPRM seeks comment on any responsibility that 
manufacturers, retailers, and distributors should have to notify 
customers about the licensing requirements or steps they could take to 
ensure that low power auxiliary stations are not marketed to ineligible 
users. Should there be some form of responsibility or accountability 
placed upon one or more of these entities at the point of sale and, if 
so, what should it be? The FNPRM seeks comment, for example, on whether 
the rules should prohibit manufactures, retailers and distributors from 
selling or distributing low power auxiliary stations, including 
wireless microphones unless such sale is to a party that has committed 
in writing that the party is a bona fide reseller or a party eligible 
to be a low power auxiliary station licensee pursuant to part 74 of the 
Commission's rules. In addition, the FNPRM seeks comment on whether 
manufacturers, retailers, or distributors could require a facility 
identification number associated with a Commission license, or some 
other form of identification which shows that the purchaser is a 
licensee. Another alternative would be for the manufacturer, retailer, 
or distributor to cross-check a purchaser against information, perhaps 
in a database provided by the Commission, to determine whether a 
purchaser is an eligible user.

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

    67. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design standards; and (4) an exemption

[[Page 3692]]

from coverage of the rule, or any part thereof, for small entities.''
    68. The Commission is considering the extent to which it should 
expand eligibility to allow more parties to obtain a license to operate 
wireless microphones under part 74. It seeks comment on whether to 
expand eligibility to permit parties operating large theaters, 
entertainment complexes, sporting arenas and religious facilities to 
obtain part 74 licenses because these applications are similar to 
others which are currently permitted under part 74. The Commission also 
seeks comment on whether it should modify the eligibility requirements 
for a part 74 license to include other entities that use wireless 
microphones, such as those operating at convention or trade shows, 
certain other cultural events, or governmental or educational 
institutions. The Commission is considering whether the expansion 
should be limited, because a broad expansion in eligibility for 
licensing under part 74 could significantly reduce the amount of 
spectrum available for part 15 TV band devices, which have to protect 
licensed part 74 operations.
    69. The Commission considered and decided to propose allowing 
wireless microphones to operate in the TV bands on a non-licensed basis 
under part 15 of the rules. The proposed technical requirements are 
consistent with the current part 74 technical requirements for wireless 
microphones, meaning that manufacturers should be able to certify 
equipment under part 15 with few or no changes from currently available 
designs, thus minimizing the economic burden on manufacturers. This 
proposed approach would allow parties such conference and special 
events centers; schools and other educational facilities; Federal State 
and local government agencies; tour guides; a variety of small 
entertainment venues, clubs and other social organizations, meeting and 
gathering places that are not currently eligible to operate wireless 
microphones in the TV bands to legally operate them. The proposed 
approach places part 15 wireless microphones on a more equal footing to 
TV band devices in terms of interference protection.
    70. In seeking comment on whether any rules are necessary to ensure 
that purchasers of low power auxiliary stations that are certificated 
under only part 74 of the rules are made aware of the part 74 licensing 
requirements, the Commission will carefully consider alternatives that 
would mitigate the impact that such rules may have on small entities. 
Similarly, to the extent the Commission considers rules that would 
impose responsibilities on manufacturers, retailers, and distributors 
to notify customers about the licensing requirements or steps they 
could take to ensure that low power auxiliary stations are not marketed 
to ineligible users, the Commission will seek to examine alternatives 
that would not be burdensome on small entities. The Commission seeks 
comment on whether there should be some form of responsibility or 
accountability placed upon manufacturers, retailers, or distributors, 
and it is considering a number of alternatives, such as requiring that 
(1) Sales of equipment only be made to a party that has committed in 
writing that the party is a bona fide reseller or a party eligible to 
be a low power auxiliary station licensee pursuant to part 74 of the 
Commission's rules; (2) a facility identification number associated 
with a Commission license, or some other form of identification shows 
that the purchaser is a licensee be developed; and (3) requiring a 
manufacturer, retailer, or distributor to cross-check a purchaser 
against information, perhaps in a database provided by the Commission, 
to determine whether a purchaser is an eligible user.

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

    None.
Initial Paperwork Reduction Act Analysis
    71. This FNPRM 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).
Congressional Review Act
    72. The Commission will include a copy of this Report and Order and 
Further Notice of Proposed Rulemaking 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).
Other Procedural Matters
1. Ex Parte Presentations
    73. The rulemaking shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in Section 
1.1206(b) of the Commission's rules.
2. Comment Filing Procedures
    74. 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 indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     Effective December 28, 2009, all hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary must 
be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, 
Washington, DC 20554. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    75. U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street, SW., Washington, DC 20554.
    76. People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to

[[Page 3693]]

[email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (tty).
    For further information regarding the Further Notice of Proposed 
Rule Making, contact Paul D'Ari, Wireless Telecommunications Bureau, 
(202) 418-1550, e-mail [email protected], or Hugh L. Van Tuyl, Office 
of Engineering and Technology, (202) 418-7506, e-mail 
[email protected].

III. Ordering Clauses

    77. It is further ordered that the Commission shall send a copy of 
this Report and Order and Further Notice of Proposed Rulemaking 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).
    77. It is further ordered pursuant to Sections 4(i), 302, 303(e), 
303(f), 303(r) and 307 of the Communications Act of 1934, as amended, 
47 U.S.C. 154(i), 302, 303(e), 303(f), 303(r) and 307 that this FNPRM 
in WT Docket No. 08-166, WT Docket No. 08-167 and ET Docket No. 10-24 
is adopted.
    79. 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 the FNPRM on or 
before 30 days after publication in the Federal Register and reply 
comments on or before 51 days after publication in the Federal 
Register.
    80. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this FNPRM, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 15

    Communications equipment, Labeling, and Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reason discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 15 as follows:

PART 15--RADIO FREQUENCY DEVICES

    1. The authority citation of part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 304, 307, 336, and 544A.

    2. Section 15.3 is amended by adding a new paragraph (hh) to read 
as follows:


Sec.  15.3  Definitions.

* * * * *
    (hh) Wireless Audio Device. An intentional radiator that is used to 
transmit voice, music or other audio material over a short distance. 
Transmissions may be either analog or digital. Data transmissions are 
not permitted except for short strings such as recognition codes 
necessary to ensure the functionality of a system. Transmission of 
audio material to the public switched telephone network and private and 
commercial wireless systems and networks is not permitted.
    3. A new Sec.  15.238 added to read as follows:


Sec.  15.238  Operation in the bands 54-72 MHz, 76-88 MHz, 174-216 MHz, 
470-608 MHz and 614-698 MHz.

    (a) Operation under this section is limited to wireless audio 
devices as defined in Sec.  15.3(hh).
    (b) Operation is limited to locations removed from existing co-
channel TV broadcast stations by not less than the following distances. 
See Sec.  73.609 for zone definitions.
    (1) 54.000-72.000 MHz and 76.000-88.000 MHz:
    (i) Zone I 105 km (65 miles)
    (ii) Zones II and III 129 km (80 miles)
    (2) 174.000-216.000 MHz:
    (i) Zone I 97 km (60 miles)
    (ii) Zones II and III 129 km (80 miles)
    (3) 470.000-608.000 MHz and 614.000-698.000 MHz: All zones 113 km 
(70 miles)
    (c) Specific frequency operation is required as follows.
    (1) The frequency selection shall be offset from the upper or lower 
band limits by 25 kHz or an integral multiple thereof.
    (2) One or more adjacent 25 kHz segments within the assignable 
frequencies may be combined to form a channel whose maximum bandwidth 
shall not exceed 200 kHz. The operating bandwidth shall not exceed 200 
kHz.
    (3) The frequency tolerance of the carrier signal shall be 
maintained within +/-0.005% of the operating frequency over a 
temperature variation of -20 degrees to +50 degrees C at normal supply 
voltage, and for a variation in the primary supply voltage from 85% to 
115% of the rated supply voltage at a temperature of 20 degrees C. 
Battery operated equipment shall be tested using a new battery.
    (d) The unmodulated carrier power at the antenna input may not 
exceed 50 mW.
    (e) The mean power of out-of-band emissions must comply with the 
following:
    (1) On any frequency removed from the operating frequency by more 
than 50% and up to 100% of the authorized bandwidth: at least 25 dB.
    (2) On any frequency removed from the operating frequency by more 
than 100% and up to 250% of the authorized bandwidth: at least 35 dB.
    (3) On any frequency removed from the operating frequency by more 
than 250% of the authorized bandwidth: 43+10 log P dB where P is the 
mean output power in watts.

[FR Doc. 2010-1149 Filed 1-21-10; 8:45 am]
BILLING CODE 6712-01-P