[Federal Register Volume 75, Number 119 (Tuesday, June 22, 2010)]
[Proposed Rules]
[Pages 35363-35366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; DA 10-695]


Improving Public Safety Communications in the 800 MHz Band; New 
800 MHz Band Plan for Puerto Rico and the U.S. Virgin Islands

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

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SUMMARY: This document summarizes the Third Further Notice of Proposed 
Rulemaking portion of the Third Report and Order and Third Further 
Notice of Proposed Rulemaking, which portion seeks comment on adopting 
a new 800 MHz band plan for the U.S. Virgin Islands.

DATES: Comments are due July 22, 2010.

ADDRESSES: 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://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     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 (although we continue 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.
     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. U.S. Postal Service first-class, Express, and 
Priority mail must be addressed to 445 12th Street, SW., Washington DC 
20554.
     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.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
     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 [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (tty).
     Parties should send a copy of their filings to John 
Evanoff, Policy Division, Public Safety and Homeland Security Bureau, 
Federal Communications Commission, Room 7-B550, 445 12th Street, SW., 
Washington, DC 20554, or by e-mail to [email protected]. Parties 
shall also serve one copy with the Commission's copy contractor, Best 
Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail to 
[email protected].
     Documents in WT Docket No. 02-55 will be available for 
public inspection and copying during business hours at the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., Room 
CY-A257, Washington, DC 20554. The documents may also be purchased from 
BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 
488-5562, e-mail [email protected].

FOR FURTHER INFORMATION CONTACT: John Evanoff, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-0848.

SUPPLEMENTARY INFORMATION: This is a summary of the Third Further 
Notice of

[[Page 35364]]

Proposed Rulemaking portion of the Commission's Third Report and Order 
and Third Further Notice of Proposed Rule Making, DA 10-695, released 
on April 26, 2010. This summary should be read in conjunction with its 
companion document, the summary of the Third Report and Order portion 
of the Third Report and Order and Third Further Notice of Proposed Rule 
Making, published elsewhere in this issue of the Federal Register. The 
complete text of the document is available for inspection and copying 
during normal business hours in the FCC Reference Information Center, 
Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. 
This document may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-
2893, facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com. It is also available on the Commission's Web site at 
http://www.fcc.gov.

Synopsis of the Third Further Notice of Proposed Rulemaking

    In a July 2004 Report and Order, the Commission reconfigured the 
800 MHz band to eliminate interference to public safety and other land 
mobile communication systems operating in the band, 69 FR 67823, 
November 22, 2004. In a Second Memorandum Opinion and Order, adopted in 
May 2007, the Commission determined that an alternative band plan was 
appropriate for the Commonwealth of Puerto Rico (Puerto Rico) due to 
the unique nature of 800 MHz incumbency in the Puerto Rico market 
compared to other markets, 72 FR 39756, July 20, 2007. Rather than 
specify a band plan for Puerto Rico, the Commission directed the 800 
MHz Transition Administrator (TA) to propose an alternative band plan 
and negotiation timetable for Puerto Rico applying certain criteria. 
The Commission delegated authority to the Public Safety and Homeland 
Security Bureau (Bureau) to approve or modify the proposed band plan 
and timetable, and suspended the rebanding timetable for Puerto Rico 
until a new band plan was adopted. On October 19, 2007, the TA filed 
the requested band plan proposal in this docket (TA Proposal). On June 
30, 2008, the Bureau sought comment on the TA Proposal for 800 MHz band 
reconfiguration in Puerto Rico as well as alternative band plans, 73 FR 
40274, July 14, 2008.
    The TA recommended that we also apply the Puerto Rico band plan to 
the U.S. Virgin Islands (USVI) because of the similar incumbencies in 
the two areas, e.g., the USVI is in the same Economic Area (EA) as 
Puerto Rico, the same EA licensees must relocate to the ESMR Band, and 
there is a similar shortage of ESMR spectrum to accommodate ESMR-
eligible licensees that wish to relocate. The TA also noted that the 
USVI, like Puerto Rico, has site-based licensees that must be relocated 
from the ESMR Band.
    Subsequently, in light of the TA's recommendation to adopt the same 
band plan for the USVI as for Puerto Rico, the Commission delegated 
authority to PSHSB to seek comment on the USVI portion of the TA 
Proposal and to adopt a rebanding plan for the USVI. In the Third 
Report and Order and Third Further Notice of Proposed Rule Making, the 
PSHSB tentatively concluded to adopt, for the USVI, the same band plan 
it adopted for Puerto Rico. The Bureau seeks comment on its tentative 
conclusion. The Bureau also seeks comment on the appropriate rebanding 
timetable for the USVI. Should the Bureau implement an 18-month 
timetable similar to the Puerto Rico timetable (commencing on the 
effective date of the rules adopted for rebanding in the USVI), or is a 
different, possibly shorter, timetable appropriate?

Procedural Matters

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980 (RFA), as 
amended, 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 Third Further Notice of Proposed Rulemaking portion of 
the Third Report and Order and Third Further Notice of Proposed Rule 
Making (Third FNPRM). Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments on the first page of the Third 
Report and Order and Third Further Notice of Proposed Rule Making. The 
Commission will send a copy of the Third Report and Order and Third 
Further Notice of Proposed Rule Making including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the Third Report and Order and Third Further Notice of 
Proposed Rule Making and IRFA (or summaries thereof) will be published 
in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    In this Third FNPRM, we consider the 800 MHz Transition 
Administrator's (TA) proposal to reconfigure the band plan for the U.S. 
Virgin Islands (USVI). In the Second Memorandum Opinion and Order, the 
Commission stated that the alternative band plan would be confined to 
Puerto Rico since no party had identified any comparable channel 
shortage outside of Puerto Rico. However, because Puerto Rico and USVI 
are in the same EA, EA 174, and have the same EA licensees, the USVI 
faces the same shortage of ESMR spectrum as Puerto Rico. Similarly, 
there are also high-site incumbents in the USVI to be relocated from 
the ESMR band. Given these circumstances, the TA determined that the 
USVI is served best by the same alternative band plan as Puerto Rico. 
Using the same alternative band plan for the entire EA will also permit 
frequency planning and future spectrum coordination to be performed 
more efficiently. Therefore, the TA proposed that the Puerto Rico band 
plan be applied to the USVI. In light of the TA's recommendation to 
adopt the same band plan for the USVI as for Puerto Rico, the 
Commission has delegated authority to the Bureau to seek comment on the 
USVI portion of the TA Proposal and to adopt a rebanding plan for the 
USVI.
    Under the TA's proposal, and consistent with the U.S. Band Plan and 
the new Puerto Rico band plan, all US Virgin Island incumbents in the 
806-809/851-854 MHz (Channel 1-120) band segment would be relocated to 
comparable spectrum in the Interleaved, Expansion, or ESMR Band, 
depending on their eligibility. All NPSPAC licensees would be relocated 
from their 821-824/866-869 MHz channel assignments to channel 
assignments 15 MHz downward in the 806-809/851-854 MHz band segment. 
Under the TA Proposal, the USVI band plan would be the same as the band 
plan for non-border regions of the United States (U.S. Band Plan), 
except that the Expansion Band would be expanded by 0.5 MHz in 
bandwidth through elimination of the lower 0.5 MHz portion of the Guard 
Band. Under the TA Proposal, the ESMR Band in EA 174 would remain in 
the same channels as in the U.S. Band Plan. The TA has determined that 
there will not be sufficient capacity to accommodate fully all ESMR and 
ESMR-eligible licensees in the ESMR Band. The TA Proposal provides that 
the TA will apportion the USVI ESMR Band (817-824/862-869 MHz) in 
accordance with the provisions set forth

[[Page 35365]]

by the Commission the 800 MHz Second Memorandum Opinion and Order. The 
TA proposes that all USVI licensees would be subject to a single 90-day 
mandatory negotiation period, after which any licensee that fails to 
negotiate a Frequency Reconfiguration Agreement with Sprint Nextel 
would enter TA-sponsored mediation. The reconfiguration of the 800 MHz 
band in the USVI is in the public interest because it will allow the 
Commission to eliminate interference in these regions to public safety 
and other land mobile communication systems. Interference is eliminated 
by separating to the greatest extent possible--public safety and other 
non-cellular licensees from licensees that employ cellular technology 
in the 800 MHz band. In that connection, it is the Bureau's intent to 
proceed with rebanding in the USVI as quickly as is feasible consistent 
with the Commission's goals in this proceeding.

Legal Basis

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

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

    The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules. The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    A small organization is generally any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field. Nationwide, as of 1992, there were approximately 275,801 small 
organizations. A ``small governmental jurisdiction'' generally means 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than 
50,000.'' As of 1992, there were approximately 85,006 such 
jurisdictions in the United States. This number included 38,978 
counties, cities and towns; of these, 37,566, or ninety-six percent, 
have populations of fewer than 50,000. The Census Bureau estimates that 
this ratio is approximately accurate for all governmental entities. 
Thus, of the 85,006 governmental entities, we estimate that 81,600 
(ninety-one percent) are small entities. Below, we further describe and 
estimate the number of small entities--applicants and licensees--that 
may be affected by the proposals, if adopted, in this Third FNPRM.
    Public Safety Radio Licensees. Public safety licensees that operate 
800 MHz systems in the USVI would be required to relocate their station 
facilities according to the band plan proposed in this Third FNPRM. As 
indicated above, all governmental entities with populations of less 
than 50,000 fall within the definition of a small entity.
    Business, I/LT, and SMR Licensees. Business and Industrial Land 
Transportation (B/ILT) and Specialized Mobile Radio (SMR) licensees 
which operate 800 MHz systems in the USVI would be required to relocate 
their station facilities according to the band plan proposed in this 
Third FNPRM. Neither the Commission nor the SBA has developed a 
definition of small businesses directed specifically toward these 
licensees.
    ESMR Licensees. Enhanced Specialized Mobile Radio (ESMR) licensees 
and ESMR-eligible licensees which operate 800 MHz systems in the USVI 
would be required to relocate their station facilities according to the 
band plan proposed in this Third FNPRM. Neither the Commission nor the 
SBA has developed a definition of small businesses directed 
specifically toward these licensees.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

Steps Taken to Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    The RFA requires an agency to describe any significant, 
specifically small business alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) exemption from 
coverage of the rule, or any part thereof, for small entities.''
    The TA has recommended that we apply the Puerto Rico band plan to 
the USVI because of the similar incumbencies in the two areas. The USVI 
is in the same Economic Area (EA) as Puerto Rico, the same EA licensees 
must relocate to the ESMR Band, and there is a similar shortage of ESMR 
spectrum to accommodate ESMR-eligible licensees that wish to relocate. 
The TA also noted that the USVI, like Puerto Rico, has site-based 
licensees that must be relocated from the ESMR Band.
    To the extent that adoption of the TA's proposal may impose an 
economic impact in the USVI on relocating non-ESMR and site-based 
incumbents, including public safety, to the non-ESMR band, that impact 
will be borne by Sprint Nextel Corp. (Sprint) because Sprint must pay 
the costs of 800 MHz band reconfiguration. Under Small Business 
Administration criteria, Sprint is a large entity. Furthermore, there 
is no evidence in the record that non-Sprint licensees in the USVI 
market, including small wireless cellular, public safety, governmental 
entities or other wireless entities, would suffer adverse economic 
consequences. Indeed, these licensees are likely to enjoy several 
benefits, including improved interference protection, as a result of 
band reconfiguration.
    Additionally, while apportioning spectrum in the ESMR band may 
result in a reduction in ESMR spectrum availability, licensees can 
accommodate these reductions by employing more spectrum-efficient 
technologies and higher-quality digital technologies. ESMR and ESMR-
eligible licensees are also likely to receive a number of benefits as a 
result of modifying the USVI Band Plan. For example, as a consequence 
of 800 MHz band reconfiguration, ESMR-eligible licensees will be able 
to relocate EA and site-based facilities to the ESMR band that are 
currently located below the ESMR band. If these facilities are 
relocated and integrated into an ESMR band system, these licensees (1) 
will be relieved of the cost and limitations associated with abating 
interference created by the interleaving of ESMR stations with high-
site systems used by public safety and others in the non-ESMR portion 
of the band and (2) will be able to take

[[Page 35366]]

advantage of spectrally efficient technologies.

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

    None.

Paperwork Reduction Act Analysis

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

Congressional Review Act

    The Commission will not send a copy of this Third Report and Order 
and Third Notice of Proposed Rulemaking in a report to be sent to 
Congress and the Government Accountability Office, pursuant to the 
Congressional Review Act.

Ordering Clauses

    Accordingly, it is ordered, pursuant to Sections 4(i) and 332 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 332, and 
Sections 0.191 and 0.392 of the Commission's rules, 47 CFR 0.191, 
0.392, that this Third Report and Order and Third Further Notice of 
Proposed Rule Making is adopted.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Third Report and Order and Third Further Notice of 
Proposed Rule Making, including the Final Regulatory Flexibility 
Certification and Initial Regulatory Flexibility Act Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.
    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 July 22, 2010, 
and reply comments are due August 6, 2010.

Federal Communications Commission.
James Arden Barnett, Jr.,
Rear Admiral (Ret.), Chief, Public Safety and Homeland Security Bureau.
[FR Doc. 2010-14994 Filed 6-21-10; 8:45 am]
BILLING CODE 6712-01-P