[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Rules and Regulations]
[Pages 33729-33731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14387]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 03-66; RM-10586; FCC 10-107]


Facilitating the Provision of Fixed and Mobile Broadband Access, 
Educational and Other Advanced Services in the 2150-2162 and 2500-2690 
MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

SUMMARY: In this document, the Commission modifies the construction 
deadline applicable to new initial Broadband Radio Service (BRS) 
licenses granted on or after November 6, 2009. Specifically, the 
Commission permits these BRS licensees to demonstrate substantial 
service four years from the date of license grant rather than on or 
before May 1, 2011. The Commission further modifies the construction 
rule by clarifying that BRS and Educational Broadband Service (EBS) 
licensees may demonstrate substantial service by meeting one of the 
safe harbors specified in the rule and that they may, under certain 
circumstances, demonstrate substantial service by combining licenses. 
Finally, on its own motion, the Commission corrects a clerical error in 
its rules governing the pre-transition frequency assignments for BRS 
Channel 1. These actions clarify the requirements necessary for BRS and 
EBS licensees to demonstrate substantial service and ensure that BRS 
licensees of new initial licenses are given a reasonable period of time 
to deploy service, while ensuring that spectrum is rapidly placed in 
use.

DATES: Effective July 15, 2010.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek, Wireless 
Telecommunications Bureau, Broadband Division, Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-
0274 or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Broadband Radio Service/Educational Broadband Service Third Report and 
Order (BRS/EBS 3rd R&O), FCC 10-107, adopted on June 1, 2010, and 
released on June 3, 2010. The full text of this document is available 
for public inspection and copying during normal business hours in the 
FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554. The complete text may be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc. 
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, (202) 488-5300

[[Page 33730]]

or 1-800-378-3160, contact BCPI at its Web site: http://www.bcpiweb.com. When ordering documents from BCPI, please provide the 
appropriate FCC document number, for example, FCC 10-107. The complete 
text of this document is also available on the Commission's Web site at 
http://wireless.fcc.gov/edocs_public/attachment/FCC-10-107A1doc. This 
full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, 
audio cassette, and Braille) are available by contacting Brian Millin 
at (202) 418-7426, TTY (202) 418-7365, or via e-mail to 
[email protected].

SUMMARY: 

I. Background

A. Introduction

    1. In the April 2006, BRS/EBS Second Report and Order, the 
Commission adopted May 1, 2011 as the uniform date by which all BRS 
Basic Trading Area (BTA) authorization holders and incumbent BRS and 
EBS licensees must demonstrate substantial service. The Commission 
adopted May 1, 2011 as the date for BRS licensees to demonstrate 
substantial service because it is the date that renewal applications 
for incumbent BRS licenses are due. Moreover, May 1, 2011 is 
approximately five years from the date of release of the BRS/EBS Second 
Report and Order, which gave existing BRS licensees five years to build 
out their systems, while they simultaneously transitioned to the new 
band plan and technical rules. Thus, the Commission concluded, 
requiring BRS licensees to demonstrate substantial service by May 1, 
2011 struck the appropriate balance between ensuring that the band is 
promptly placed in use and giving licensees fair opportunity to 
transition their facilities. The Commission then required that BRS 
incumbent licensees file their demonstration of substantial service 
with their respective renewal applications.
    2. On April 24, 2009, the Bureau announced Auction 86, in which it 
intended to auction 78 BRS BTA licenses, 75 of which were overlay 
licenses that were originally offered in Auction 6 and were available 
as a result of default, cancellation, or termination. Three additional 
licenses were created by the Commission in the BRS/EBS Fourth MO&O, 
when the Commission amended its rules to establish three Gulf of Mexico 
Service Areas for BRS. Under the rules adopted in the BRS/EBS Second 
Report and Order, auction winners would be required to demonstrate 
substantial service on or before May 1, 2011.
    3. On September 11, 2009, the Commission released the BRS/EBS Third 
Further Notice of Proposed Rulemaking (BRS/EBS Third FNPRM), 74 FR 
49335 (September 28, 2009), concluding that applicants that win BRS 
licenses in Auction 86, and any subsequent auction of BRS licenses, 
should demonstrate substantial service on or before four years from the 
date their respective licenses are granted. The Commission tentatively 
concluded that a four-year time period would allow new licensees 
sufficient time to build out their systems and put the spectrum to use. 
The Commission also proposed to revise the introductory text to Sec.  
27.14(o) of the Commission's rules to more clearly state the 
Commission's intent to allow BRS or EBS licensees to demonstrate 
substantial service if their respective lessees met one of the safe 
harbors adopted by the Commission and to allow licenses to be combined 
for purposes of demonstrating substantial service under certain 
circumstances.
    4. On October 27, 2009, the Commission began Auction 86, the 
auction of 78 BRS BTA licenses. On November 6, 2009, the Wireless 
Telecommunications Bureau announced the closing of the auction.

B. BRS/EBS Third Report and Order

    5. In this BRS/EBS Third Report and Order, we adopt our proposal in 
the BRS/EBS Third FNPRM, to modify the construction deadline for new 
initial BRS licenses to provide licensees with four years from license 
grant to demonstrate substantial service. As noted in the BRS/EBS Third 
FNPRM, we believe that the substantial service deadline should ensure 
that spectrum is promptly placed in use while allowing licensees a 
reasonable opportunity to construct. We agree with most commenters 
that, with respect to new initial BRS licenses, a four year term 
strikes the appropriate balance in serving these goals. We recognize 
that the May 1, 2011 deadline adopted in 2006 does not provide adequate 
time to build out new initial BRS licenses, particularly since licenses 
for the recently-completed Auction 86 have not yet been issued.
    6. We note that we do revise our proposal in the BRS/EBS Third 
FNPRM in one respect. We had originally proposed to make the new 
substantial service date effective when the new version of Sec.  
27.14(o) of the Commission's rules became effective. Because Auction 86 
has now closed, we amend Sec.  27.14(o) to apply the new substantial 
service date to initial licenses granted on or after the date the 
Closing Public Notice was released, November 6, 2009. This change will 
allow all licensees awarded licenses in Auction 86 to take advantage of 
the new substantial service date.
    7. We also adopt our proposal to revise the introductory text to 
Sec.  27.14(o) of the Commission's rules to more clearly state the 
Commission's intent to allow BRS or EBS licensees to demonstrate 
substantial service if a lessee has met one of the specified safe 
harbors, and to allow licenses to be combined for purposes of 
demonstrating substantial service under certain circumstances.
    8. On our own motion, we correct a clerical error in Sec.  
27.5(i)(1) of the Commission's rules. The listing for BRS Channel 1 in 
the pre-transition frequency assignments currently reads as ``RS 
Channel 1.''
    9. Our actions today will provide licensees who are awarded new 
initial BRS licenses, including through the Auction 86 process, with a 
reasonable period of time to deploy service, while ensuring that 
spectrum is rapidly placed in use.

II. Procedural Matters

Paperwork Reduction Analysis

    10. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
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).

III. Final Regulatory Flexibility Act Certification

    11. For the reasons described below, we now certify that the 
policies and rules adopted in the BRS/EBS Third Report and Order will 
not have a significant economic impact on a substantial number of small 
entities. The RFA generally defines the term ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A ``small business 
concern'' is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the

[[Page 33731]]

U.S. Small Business Administration (SBA).
    12. In the BRS/EBS Third Report and Order, the Commission extends 
the deadline for demonstrating substantial service for those licensees 
that are granted an initial BRS license on or after November 6, 2009. 
The Commission takes this action in the context of its decision to 
auction 78 available BRS BTA licenses in Auction No. 86, which began on 
October 27, 2009. The Wireless Telecommunications Bureau announced the 
close of Auction No. 86 on November 6, 2009. This action will not 
create any additional burdens for BRS licensees because all BRS 
licensees must demonstrate substantial service. Moreover, this decision 
relieves licensees granted an initial license on or after November 6, 
2009 from having to meet the May 1, 2011 deadline, but would require 
them to demonstrate substantial service four years from the date of 
license grant.
    13. Therefore, we certify that the requirements of the BRS/EBS 
Third Report and Order will not have a significant economic impact on a 
substantial number of small entities.

IV. Report to Congress

    14. The Commission will send a copy of this BRS/EBS Third Report 
and Order, including a copy of this Final Regulatory Flexibility 
Certification, in a report to Congress and the Government 
Accountability Office pursuant to the Small Business Regulatory 
Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A).

V. Ordering Clauses

    15. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 7, 
10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and 
706 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 
160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, 
and 706, that this Third Report and Order is hereby adopted.
    16. It is further ordered, pursuant to section 4(i) of the 
Communications Act of 1934, 47 U.S.C. 154(i) that the Commission's 
Consumer and Governmental Affairs Bureau, Reference Information Center, 
shall send a copy of this Third Report and Order, including the Final 
Regulatory Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects in 47 CFR Part 27

    Communications common carriers, Radio.

Marlene H. Dortch,
Secretary, Federal Communications Commission.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission proposes to amend 47 CFR part 27 as follows:

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
1. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337 unless otherwise noted.


0
2. Amend Sec.  27.5 by revising paragraph (i)(1) to read as follows:


Sec.  27.5  Frequencies.

* * * * *
    (i) * * *
    (1) Pre-transition frequency assignments.

BRS Channel 1: 2150-2156 MHz or 2496-2500 MHz
BRS Channel 2: 2156-2162 MHz or 2686-2690 MHz
BRS Channel 2A: 2156-2160 MHz
EBS Channel A1: 2500-2506 MHz
EBS Channel B1: 2506-2512 MHz
EBS Channel A2: 2512-2518 MHz
EBS Channel B2: 2518-2524 MHz
EBS Channel A3: 2524-2530 MHz
EBS Channel B3: 2530-2536 MHz
EBS Channel A4: 2536-2542 MHz
EBS Channel B4: 2542-2548 MHz
EBS Channel C1: 2548-2554 MHz
EBS Channel D1: 2554-2560 MHz
EBS Channel C2: 2560-2566 MHz
EBS Channel D2: 2566-2572 MHz
EBS Channel C3: 2572-2578 MHz
EBS Channel D3: 2578-2584 MHz
EBS Channel C4: 2584-2590 MHz
EBS Channel D4: 2590-2596 MHz
BRS Channel E1: 2596-2602 MHz
BRS Channel F1: 2602-2608 MHz
BRS Channel E2: 2608-2614 MHz
BRS Channel F2: 2614-2620 MHz
BRS Channel E3: 2620-2626 MHz
BRS Channel F3: 2626-2632 MHz
BRS Channel E4: 2632-2638 MHz
BRS Channel F4: 2638-2644 MHz
EBS Channel G1: 2644-2650 MHz
BRS Channel H1: 2650-2656 MHz
EBS Channel G2: 2656-2662 MHz
BRS Channel H2: 2662-2668 MHz
EBS Channel G3: 2668-2674 MHz
BRS Channel H3: 2674-2680 MHz
EBS Channel G4: 2680-2686 MHz
I Channels: 2686-2690 MHz
* * * * *


0
3. Amend Sec.  27.14 by revising paragraph (o) introductory text to 
read as follows:


Sec.  27.14  Construction requirements; Criteria for renewal.

* * * * *
    (o) BRS and EBS licensees originally issued a BRS or EBS license 
prior to November 6, 2009 must make a showing of substantial service no 
later than May 1, 2011. With respect to initial BRS licenses issued on 
or after November 6, 2009, the licensee must make a showing of 
substantial service within four years from the date of issue of the 
license. Incumbent BRS licensees that are required to demonstrate 
substantial service by May 1, 2011 must file their substantial service 
showings with their renewal applications. ``Substantial service'' is 
defined as service which is sound, favorable, and substantially above a 
level of mediocre service which just might minimally warrant renewal. 
Substantial service for BRS and EBS licensees is satisfied if a 
licensee meets the requirements of paragraph (o)(1), (o)(2), or (o)(3) 
of this section. If a licensee has not met the requirements of 
paragraph (o)(1), (o)(2), or (o)(3) of this section, then demonstration 
of substantial service shall proceed on a case-by-case basis. Except as 
provided in paragraphs (o)(4) and (o)(5) of this section, all 
substantial service determinations will be made on a license-by-license 
basis. Failure by any licensee to demonstrate substantial service will 
result in forfeiture of the license and the licensee will be ineligible 
to regain it.
* * * * *
[FR Doc. 2010-14387 Filed 6-14-10; 8:45 am]
BILLING CODE 6712-01-P