[Federal Register Volume 75, Number 119 (Tuesday, June 22, 2010)]
[Rules and Regulations]
[Pages 35315-35318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14995]


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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: Final rule.

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SUMMARY: This document summarizes the Third Report and Order portion of 
the Third Report and Order and Third Further Notice of Proposed 
Rulemaking, which portion establishes a new 800 MHz band plan for the 
Commonwealth of Puerto Rico (Puerto Rico).

DATES: Effective July 22, 2010.

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 Report and 
Order portion of the Commission's Third Report and Order and Third 
Further Notice of Proposed Rulemaking, DA 10-695, released on April 26, 
2010. This summary should be read in conjunction with the summary of 
the Third Further Notice of Proposed Rulemaking portion of the Third 
Report and Order and Third Further Notice of Proposed Rulemaking 
published elsewhere in this issue of the Federal Register. The complete 
text of the Third Report and Order and Third Further Notice of Proposed 
Rulemaking 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. The 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

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(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 Report and Order

    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 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, based on certain criteria established by the Commission. 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 Bureau received three comments and three 
reply comments in response to the Further Notice of Proposed 
Rulemaking.
    Based on the record, the Bureau adopted the TA Proposal for the 
non-ESMR portion of the band because it best fulfills the Commission's 
goal to separate--to the greatest extent possible--public safety and 
other non-cellular licensees from licensees that employ cellular 
technology in the 800 MHz band. The non-ESMR band plan adopted contains 
the following elements:
     All NPSPAC licensees will be relocated from their current 
821-824/866-869 MHz channel assignments to channel assignments 15 MHz 
lower in frequency, i.e., to the 806-809/851-854 MHz band segment.
     As with the non-border U.S. Band Plan, all Puerto Rico 
incumbents in the 806-809/851-854 MHz band segment will be relocated to 
comparable spectrum in the Interleaved, Expansion, or ESMR Band, 
depending on their eligibility.
     All licensees currently operating in the Interleaved Band 
will remain on their current frequencies, except those relocating to 
the ESMR band.
     All non-ESMR incumbents that are not public safety 
licensees and that currently operate in the Expansion Band, as 
modified, will remain on their current frequencies.
     Licensees in the modified Guard Band may, at their option, 
relocate to the Interleaved or Expansion Band.
     All licensees that currently operate between 817-821/862-
866 MHz and are not eligible to remain in the ESMR band will be 
relocated to the 809-816.5/854-861.5 MHz band segment, which includes 
the Interleaved and Expansion Bands of the Puerto Rico Band Plan.
    The ESMR Band in Puerto Rico is identical to the U.S. non-border 
817-824/862-869 MHz ESMR band segment. Because not all ESMR and ESMR-
eligible licensees in Puerto Rico may be accommodated within that ESMR 
Band segment, the Bureau apportioned the Puerto Rico ESMR Band and 
directed the TA to use the following procedure:
     The TA will attempt to assign replacement channels to the 
EA-based non-Sprint ESMR and ESMR-eligible licensees on a 1:1 basis 
relative to their existing Puerto Rico holdings. If ESMR channels 
remain after this assignment, the TA shall assign them to Sprint.
     If, however, sufficient ESMR channels are not available to 
assign them on a 1:1 basis to all non-Sprint ESMR and ESMR-eligible 
licensees electing to relocate to the ESMR band, then the number of 
Sprint ESMR channels will be reduced to the extent necessary to assign 
channels to the non-Sprint licensees on a 1:1 basis.
     If sufficient ESMR channels are not available following 
the apportionment, supra, then the holdings of all ESMR and ESMR-
eligible licensees electing to relocate to the ESMR band will be 
reduced pro rata such that all such licensees are accommodated in the 
band.
    The Bureau adopted a single 90-day mandatory negotiation period for 
the remaining incumbent licensees that must be retuned from the 816.5-
821/861.5-866 MHz portion of the band. Thereafter, if Sprint and an 
incumbent licensee have not negotiated a Frequency Reconfiguration 
Agreement with Sprint, they must enter mandatory TA-sponsored 
mediation. The Bureau also established an 18-month transition period to 
complete rebanding in Puerto Rico. The transition period will start 60 
days after the effective date of this Third Report and Order and Third 
Further Notice of Proposed Rulemaking.
    The Bureau also extended the filing freeze on new applications in 
the Puerto Rico region until thirty working days after the date for 
completion of mandatory negotiations. However, the freeze does not 
apply to applications for modification of license that do not change an 
800 MHz frequency or expand an 800 MHz station's existing coverage area 
(e.g., administrative updates), assignments/transfers, or renewal-only 
applications. In addition, licensees in the Puerto Rico region may 
expand their facilities or add channels during the freeze, but only 
pursuant to Special Temporary Authorization (STA). Requests for STA 
must be accompanied by a demonstration that, without the new or 
expanded facilities, there would be a specific, material and serious 
adverse effect on the safety of life or property.
    The Bureau also directed the TA to develop, within 30 days of the 
effective date of the Third Report and Order and Third Further Notice 
of Proposed Rulemaking, a detailed Puerto Rico band reconfiguration 
timetable with milestones for completion of each stage of the process. 
The timetable shall take into account variations in licensee 
characteristics and shall enumerate the specific steps required to 
implement both Stage 1 relocation of non-public safety licensees and 
Stage 2 relocation of NPSPAC licensees, EA/ESMR licensees and high-site 
incumbents. If necessary, the timetable should also take into account 
Stage 3 relocation of Preferred Communications Systems, Inc. (PCSI), 
and Preferred Acquisitions, Inc. (PAI) EA licenses and, as necessary, 
pro rata apportionment of ESMR spectrum as described above. The Bureau 
envisions that the sequence of band reconfiguration in Puerto Rico will 
occur in the following stages:

Stage 1

     Clear non-Sprint incumbent licensees from Channels 1-120.
     Defer assigning replacement spectrum for PCSI's and PAI's 
EA licenses.

Stage 2

     Relocate NPSPAC licensees 15 MHz lower in frequency to the 
new NPSPAC band.
     Relocate EA and site-based ESMR licensees (except PCSI and 
PAI) from the Interleaved channels to the ESMR band.
     Relocate high-site incumbents from the ESMR band to the 
cleared Interleaved channels.
     Relocate EA/ESMR licensees from the Guard Band to the 
cleared ESMR channels.

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Stage 3 (if necessary)

     Relocate PCSI's and PAI's EA and site based channels to 
the ESMR band.
     If the ESMR band cannot accommodate all ESMR band 
licensees, then:
    [cir] Relieve the shortfall by redesignating Sprint channels for 
use by other licensees, and, if necessary,
    [cir] Reduce the number of all licensees' channels pro rata in 
order to accommodate all licensees within the ESMR band.

Procedural Matters

Final Regulatory Flexibility Certification

    The Regulatory Flexibility Act of 1980 (RFA), requires that a 
regulatory flexibility analysis be prepared for rulemaking proceedings, 
unless the agency certifies that ``the rule will not have a significant 
economic impact on a substantial number of small entities.'' The RFA 
generally defines ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA). We certify that the rule changes 
and actions in this Third Report and Order will have no significant 
economic impact on a substantial number of small entities.
    In this Third Report and Order, the Public Safety and Homeland 
Security Bureau, on delegated authority, establishes a revised 800 MHz 
band plan for Puerto Rico in order to accomplish the Commission's goals 
for band reconfiguration. The band plan is identical to the band plan 
that the Commission previously adopted in this proceeding with one 
exception--the Puerto Rico band plan includes a slightly larger 
Expansion Band and a slightly smaller Guard Band. The Puerto Rico 
Expansion and Guard Bands we establish will not have a significant 
impact on a substantial number of small businesses, and our aim is to 
provide interference protection to non-ESMR licensees. Furthermore, 
although ESMR licensees and ESMR-eligible licensees may be subject to a 
pro rata apportionment of spectrum, the number of such entities is not 
substantial, their operating capacity would not be significantly 
reduced, and the economic effect on their operations would not be 
significant. Therefore, we certify that the requirements of this Third 
Report and Order will not have a significant economic impact on a 
substantial number of small entities.

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 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 Rulemaking is adopted.
    It is further ordered that the amendments of the Commission's 
rules, set forth below, are effective 30 days from the date of 
publication in the Federal Register.
    It is further ordered that the Final Regulatory Flexibility 
Certification required by Section 604 of the Regulatory Flexibility 
Act, 5 U.S.C. 604, and as set forth above 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 Rulemaking, including the Final Regulatory Flexibility 
Certification and Initial Regulatory Flexibility Act Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 90

    Private land mobile radio services.

Federal Communications Commission.
James Arden Barnett, Jr.,
Rear Admiral (Ret.), Chief, Public Safety and Homeland Security Bureau.

Final Rules

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

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

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

    Authority: 4(i), 11, 303(g), 303(r), and 302(c)(7) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


0
2. Section 90.617 is amended by revising paragraphs (k)(1), and (k)(2), 
and adding paragraphs (k)(3) and (k)(4) to read as follows:


Sec.  90.617  Frequencies in the 809.750-824/824.750-869 MHz, and 896-
901/935-940 MHz bands available for trunked, conventional or cellular 
system use in non-border areas.

* * * * *
    (k) * * *
    (1) Mobile units (except in Puerto Rico):
    (i) For channels 511 to 524--the minimum median desired signal 
levels specified in Sec.  22.970(a)(1)(i) of this chapter and Sec.  
90.672(a)(1)(i) shall apply;
    (ii) For channels 524 to 534--the minimum median desired signal 
level shall increase linearly from the values specified in Sec.  
22.970(a)(1)(i) of this chapter and Sec.  90.672(a)(1)(i) to -70 dBm;
    (iii) For channels 534 to 550--the minimum median desired signal 
level shall increase linearly from -70 dBm to -65 dBm.
    (2) Portable units (except in Puerto Rico):
    (i) For channels 511 to 524--the minimum median desired signal 
levels specified in Sec.  22.970(a)(1)(i) of this chapter and Sec.  
90.672(a)(1)(i) shall apply;
    (ii) For channels 524 to 530--the minimum median desired signal 
level shall increase linearly from the values specified in Sec.  
22.970(a)(1)(i) of this chapter and Sec.  90.672(a)(1)(i) to -80 dBm;
    (iii) For channels 530 to 534--the minimum median desired signal 
level shall increase linearly from -80 dBm to -70 dBm;
    (iv) For channels 534 to 550--the minimum median desired signal 
level shall increase linearly from -70 dBm to -65 dBm.
    (3) Mobile units operating in Puerto Rico:
    (i) For channels 511 to 530--the minimum median desired signal 
levels specified in Sec.  22.970(a)(1)(i) of this chapter and Sec.  
90.672(a)(1)(i) shall apply;
    (ii) For channels 531 to 534--the minimum median desired signal 
level shall increase linearly from -80.2 dBm to -70 dBm;

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    (iii) For channels 534 to 550--the minimum median desired signal 
level shall increase linearly from -70 dBm to -65 dBm.
    (4) Portable units operating in Puerto Rico:
    (i) For channels 511 to 530--the minimum median desired signal 
levels specified in Sec.  22.970(a)(1)(i) of this chapter and Sec.  
90.672(a)(1)(i) shall apply;
    (ii) For channels 531 to 534--the minimum median desired signal 
level shall increase linearly from -80 dBm to -70 dBm;
    (iii) For channels 534 to 550--the minimum median desired signal 
level shall increase linearly from -70 dBm to -65 dBm.

0
3. Sections 90.677 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  90.677  Reconfiguration of the 806-824/851-869 band in order to 
separate cellular systems from non-cellular systems.

* * * * *
    (b) Voluntary negotiations. Thirty days before the start date for 
each NPSPAC region other than Region 47, the Chief, Public Safety and 
Homeland Security Bureau will issue a public notice initiating a three-
month voluntary negotiation period. During this voluntary negotiation 
period, Nextel and all incumbents may negotiate any mutually agreeable 
relocation agreement. Sprint Nextel and relocating incumbents may agree 
to conduct face-to-face negotiations or either party may elect to 
communicate with the other party through the Transition Administrator.
    (c) Mandatory negotiations. If no agreement is reached by the end 
of the voluntary period, a three-month mandatory negotiation period 
will begin during which both Sprint Nextel and the incumbents must 
negotiate in ``good faith.'' In Region 47, a 90-day mandatory 
negotiation period will begin 60 days after the effective date of the 
Third Report and Order and Third Further Notice of Proposed Rulemaking 
in WT Docket 02-55. Sprint Nextel and relocating incumbents may agree 
to conduct face-to-face negotiations or either party may elect to 
communicate with the other party through the Transition Administrator. 
All parties are charged with the obligation of utmost ``good faith'' in 
the negotiation process. Among the factors relevant to a ``good-faith'' 
determination are:
    (1) Whether the party responsible for paying the cost of band 
reconfiguration has made a bona fide offer to relocate the incumbent to 
comparable facilities;
    (2) The steps the parties have taken to determine the actual cost 
of relocation to comparable facilities; and
    (3) Whether either party has unreasonably withheld information, 
essential to the accurate estimation of relocation costs and 
procedures, requested by the other party. The Transition Administrator 
may schedule mandatory settlement negotiations and mediation sessions 
and the parties must conform to such schedules.
* * * * *
[FR Doc. 2010-14995 Filed 6-21-10; 8:45 am]
BILLING CODE 6712-01-P