[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Proposed Rules]
[Pages 38959-38974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16351]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 22, 24, 27, 90, and 101
[WT Docket No. 10-112; FCC 10-86]
Uniform License Renewal, Discontinuance of Operations, and
Geographic Partitioning and Spectrum Disaggregation Rules and Policies
for Certain Wireless Radio Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document the Federal Communications Commission
(Commission) seeks comment on revisions to its rules governing license
renewals, discontinuance of operations, geographic partitioning, and
spectrum disaggregation for certain Wireless Radio Services in an
effort to update and harmonize its rules.
DATES: Submit comments on or before August 6, 2010, and reply comments
on or before August 23, 2010. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before September 7, 2010.
ADDRESSES: You may submit comments, identified by WT Docket No. 10-112,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission Web site: http://
www.fcc.
[[Page 38960]]
gov/cgb/ecfs. Follow the instructions for submitting comments.
Mail: Office of the Secretary, Federal Communications
Commission, 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.
Hand Delivery/Courier: Federal Communications Commission,
Office of the Secretary, 445 12th Street, SW., Room TW-A325,
Washington, DC 20554.
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-
0503 or TTY: 202-418-0432. All submissions received must include the
agency name and docket numbers for this rulemaking, WT Docket No. 10-
112. All comments received will be posted without change to http://www.fcc.gov/cgb/ecfs.
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: Richard Arsenault, Chief Counsel,
Mobility Division, Wireless Telecommunications Bureau, at (202) 418-
0920, or e-mail at [email protected]. In addition to filing
comments with the Secretary, a copy of any comments on the Paperwork
Reduction Act information collection requirements contained herein
should be submitted to the Federal Communications Commission via e-mail
to [email protected] and to Nicholas A. Fraser, Office of Management and
Budget, via e-mail to [email protected] or via fax at
202-395-5167.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WT Docket No. 10-112, FCC 10-86,
adopted on May 20, 2010, and released on May 25, 2010. The full text of
this document is available for inspection and copying during normal
business hours in the FCC Reference Center, 445 12th Street, SW., Room
CY-A257, Washington, DC 20554, or by downloading the text from the
Commission's Web site at http://www.fcc.gov/. The complete text also
may be purchased from the Commission's duplicating contractor, Best
Copy and Printing, Inc., Portals II, 445 12th Street, Suite CY-B402,
Washington, DC 20554. Alternative formats are available for people with
disabilities (Braille, large print, electronic files, audio format), by
sending an e-mail to [email protected] or calling the Consumer and
Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Paperwork Reduction Act of 1995 Analysis: This document contains
proposed new and modified information collection requirements. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to comment on the proposed
information collection requirements contained in this document as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due September 7, 2010. In addition, the
Commission notes that pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the
Commission previously sought specific comment on how the Commission
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
Synopsis of the Notice of Proposed Rulemaking
I. Introduction
1. The Commission currently has a patchwork of rules governing
renewal and discontinuance obligations for wireless services, such as
cellular, personal communications service (PCS), specialized mobile
radio (SMR), and wireless communications service (WCS). In this
document, the Commission proposes to create consistent requirements for
renewal of licenses and consistent consequences for discontinuance of
service, and to clarify construction obligations for spectrum licenses
that have been divided, by geographic partitioning or disaggregation of
the spectrum. In making its rules clearer and consistent across
services, the Commission seeks to apply the rules that have worked the
best to a larger group of services, and to simplify the regulatory
process for licensees.
II. Discussion
A. Renewal Requirements for Wireless Radio Services
2. One of the Commission's principal goals in this proceeding is to
harmonize its varying requirements for the renewal of Wireless Radio
Services licenses where such harmonization would advance the public
interest. The Commission seeks to implement standardized renewal
requirements and expeditious renewal procedures, but only to the extent
that such requirements and procedures will ensure that licenses are
renewed in the public interest as required by the Act. The Commission
finds that adoption of uniform renewal policies and procedures will
promote the efficient use of spectrum resources, and will serve the
public interest by providing licensees certainty regarding their
license renewal requirements. The Commission also finds that the
renewal processes that it proposes to adopt below would encourage
licensees to invest in new facilities and services, and facilitate
their business and network planning. The Commission seeks comment on
these findings.
1. Current Requirements
3. Section 1.949(a) of the Commission's rules (47 CFR 1.949(a))
specifies two universal requirements for filing applications for
renewal of licenses in the Wireless Radio Services. First, the rule
establishes a 90-day filing period for renewal applications, beginning
90 days prior to expiration of an authorization and ending on its
expiration date. Second, the rule requires applicants to use the same
form as applications for initial authorization in the same service,
i.e., FCC Form 601 or 605. Section 1.949(a) further provides that
additional renewal requirements applicable to specific services are set
forth in the subparts governing those services. The Commission's
current renewal requirements vary widely; some rules include
comprehensive procedures, while others contain only minimal guidance.
2. Proposed Requirements
4. In the 700 MHz First Report and Order, 22 FCC Rcd 8064, 8092-
8094 (2007), the Commission adopted a new paradigm for renewal of
wireless licenses. Specifically, the Commission determined that renewal
applicants in the 700 MHz Commercial Services Band will not be subject
to competing applications and that if a renewal application is not
granted, the licensed spectrum will be returned to the Commission for
reassignment. The Commission also determined that renewal applicants in
these bands must affirmatively demonstrate that they have provided
substantial service to the public during their license term, and are in
compliance with the Commission's rules and policies and the Act.
5. The Commission proposes to adopt renewal requirements for
numerous Wireless Radio Services based on the Commission's model for
the 700 MHz Commercial Services Band licensees. Under this three-part
approach:
[[Page 38961]]
(1) Renewal applicants must file a detailed renewal showing,
demonstrating that they are providing service to the public (or, when
allowed under the relevant service rules or pursuant to waiver, using
the spectrum for private, internal communication), and substantially
complying with the Commission's rules (including any applicable
performance requirements) and policies and the Communications Act;
(2) Competing renewal applications are prohibited; and
(3) If a license is not renewed, the associated spectrum is
returned to the Commission for reassignment.
6. The Commission proposes to modify the first part of this
approach for services licensed by site by requiring affected licensees
to certify that they are continuing to operate consistent with their
applicable construction notification(s) or authorization(s) (where the
filing of construction notifications is not required), rather than
making a renewal showing. Wireless Radio Services licensed by rule or
on a personal basis or that have no construction/performance obligation
are beyond the scope of this proceeding.
7. The Commission proposes to revise Sec. 1.949 to specify the
renewal showing requirements and procedures that will be applied to
Wireless Radio Services. The proposed language of revised Sec. 1.949
is set forth below. The Commission specifically seeks comment on the
draft rule provisions. In addition to revising the generally applicable
part 1 renewal rule governing Wireless Radio Services, the Commission
proposes a number of rule revisions and deletions in the rule sections
governing specific Wireless Radio Services. The Commission specifically
requests comment on these proposed rule revisions.
a. Geographically Licensed Services--Renewal Showing
8. The Commission tentatively concludes that the public interest
would be served by adopting and applying the Commission's 700 MHz
three-part renewal paradigm to the Wireless Radio Services that are
licensed on a geographic-area basis and enumerated in revised Sec.
1.949(c) below. In the 700 MHz First Report and Order, the Commission
determined that 700 MHz Commercial Services Band licensees must file a
renewal application pursuant to Sec. 1.949, demonstrating ``that they
have provided substantial service during their past license term, which
is defined as service that is sound, favorable, and substantially above
a level of mediocre service that just might minimally warrant
renewal.'' The Commission explained that the substantial service
showing made in support of a renewal application is distinct from any
substantial service performance showing (also known as a buildout or
construction showing) under the Commission's service rules. The
Commission emphasized that ``a licensee that meets the applicable
performance requirements might nevertheless fail to meet the
substantial service standard at renewal.''
9. Many of the Commission's specific service rules require
performance showings to be made at the midpoint and end of an initial
license term regarding population or area covered. For some services,
licensees must demonstrate, or may elect to demonstrate, substantial
service as their performance requirement during their initial license
term. Thus, under the Commission's current rules, some licensees could
make two distinct substantial service showings, one to support their
renewal application and one for performance purposes, at the end of
their initial license term. Under the Commission's performance
requirement rules, a licensee generally provides a snapshot in time
(usually as of or near the date on which the notification or other
filing is submitted) of the level of service that it is providing to
the public. By contrast, a substantial service showing for renewal
requires more detailed information regarding a licensee's services and
related matters for its entire license period than one made for
performance purposes.
10. Specifically, in the 700 MHz First Report and Order, 22 FCC Rcd
at 8093, the Commission explained that ``[s]ubstantial service in the
renewal context * * * encompasses Commission consideration of a variety
of factors including [1] the level and quality of service, [2] whether
service was ever interrupted or discontinued, [3] whether service has
been provided to rural areas, and [4] any other factors associated with
a licensee's level of service to the public.'' The Commission
tentatively concludes that these same factors should be considered by
the Commission when evaluating renewal showings for the Wireless Radio
Services licensed on a geographic-area basis that are identified above.
The Commission requests comment regarding its proposed list of Wireless
Radio Services that would be subject to the renewal showing
requirement, which are enumerated in proposed Sec. 1.949(c) below.
Interested parties that recommend revising the proposed list should
specifically describe the proposed change and the rationale for any
such change.
11. The Commission also seeks to eliminate any confusion that may
have arisen from using the ``substantial service'' terminology in both
the renewal and performance contexts. To avoid the potential for
confusion and to better reflect the broad array of factors that the
Commission considers when evaluating a renewal application, the
Commission proposes to change the applicable nomenclature and require
that licensees make a ``renewal showing,'' rather than a ``substantial
service'' renewal showing.
12. Pursuant to Sec. 308(b) of the Communications Act of 1934, the
Commission may require renewal applicants to ``set forth such facts as
the Commission by regulation may prescribe as to the citizenship,
character, and financial, technical, and other qualifications of the
applicant to operate the station'' as well as ``such other information
as it may require.'' The Commission seeks comment on whether it should
consider factors in addition to those identified above when evaluating
applications for renewal.
13. The Commission notes that a number of its existing service
rules enumerate factors that a renewal applicant must address to obtain
a renewal expectancy. To facilitate public review and assessment of the
factors set forth in various current rules for demonstrating that the
applicant should receive a renewal expectancy, the Commission includes
a listing of those factors for comment:
A description of the licensee's current service in terms
of geographic coverage and population served;
An explanation of the licensee's record of expansion,
including a timetable for the construction of new sites to meet changes
in demand for service;
A description of its investments in its system;
A list, including addresses, of all cell transmitter
stations constructed;
Identification of type of facilities constructed and their
operational status;
Consideration of whether the licensee is offering a
specialized or technologically sophisticated service that does not
require a high level of coverage to benefit customers;
Consideration of whether the licensee's operations serve
niche markets or focus on serving populations outside of areas served
by other licensees; and
Consideration of whether the licensee's operations serve
populations with limited access to telecommunications services.
[[Page 38962]]
14. The Commission seeks comment regarding whether, in addition to
the factors it specified in the 700 MHz First Report and Order, the
public interest would be served by consideration of any of the factors
enumerated above when assessing whether a licensee has demonstrated a
level of service warranting renewal. The Commission encourages parties
to address whether these or other factors would enhance its ability to
assess whether a license should be renewed, and the degree to which a
factor could reasonably be demonstrated by renewal applicants. The
Commission further encourages parties to address whether these or other
factors should be used where facilities are used to meet a licensee's
private, internal communication needs.
15. The Commission also seeks comment on whether the public
interest would be served by codifying in Sec. 1.949 a nonexclusive
list of the factors that applicants should address in renewal showings.
Enumerating such factors in one rule for all affected services would
provide members of the wireless industry regulatory certainty in an
area where there currently is scant precedent and varying requirements
in the Commission's service rules. The Commission's objective in
suggesting a standardized codification of relevant factors is to
conform the current service-specific rules to the proposed policies
discussed herein and to eliminate any potential confusion. The
Commission requests comment on this proposal.
16. Broadband Radio Service and Educational Broadband Service. The
Commission concludes that modification of its renewal showing proposal
is appropriate to address the unique circumstances of the Broadband
Radio Service (BRS) and Educational Broadband Service (EBS). Given the
Commission's decision to allow BRS and EBS licensees to discontinue
service and to require substantial service as of May 1, 2011 (Report
and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165
(2004)), the Commission generally believes it would not be appropriate
to apply its proposed renewal framework to BRS or EBS licenses with a
term that is scheduled to expire on or before that date. Accordingly,
given that most BRS incumbent licenses expire on May 1, 2011, the
Commission proposes to apply this renewal framework to BRS incumbent
licenses starting with their new license term. The Commission also
tentatively concludes that it would be premature to apply this renewal
framework to EBS licenses with ten-year license terms scheduled to
expire on or before May 1, 2011. The Commission seeks comment on the
appropriate effective date for applying this renewal paradigm to EBS
licensees with ten-year license terms scheduled to expire after that
date. In addition, the Commission proposes to apply the renewal
framework to BRS Basic Trading Authorizations, most of which are
scheduled to expire in 2016. The Commission believes such licensees
will have sufficient time to complete the transition and make the
required renewal showing over the period from 2011 to 2016. The
Commission seeks comment on these proposals and any other issues
related to renewals for BRS and EBS.
b. Site-Based Licensed Services--Certification Requirement
17. The Commission finds that Wireless Radio Services licensed by
site generally are subject to licensing and renewal policies under
which requiring a showing of substantial service to support grant of
renewal would not be appropriate. In site-based services, a licensee's
initial application for authorization provides the exact technical
parameters of its planned operations, and the licensee's subsequent
notification that it has completed construction confirms that the
facilities have been constructed consistent with its authorization (or
with minor modifications as may be permitted by the applicable service
rules). A licensee also may file to modify its license, which may lead
to a modified authorization and the submission of a subsequent
construction notification. Consequently, at the time a site-based
service provider files a renewal application, it should be operating as
licensed or not operating. Under either scenario, the concept of
substantial service is inapposite.
18. Accordingly, for site-based services, the Commission proposes
to revise its Form 601 application to require renewal applicants to
certify that they are continuing to operate consistent with the
applicable filed construction notification(s) (NT) or most recent
authorization(s) (when no NT is required under the Commission's rules).
The Commission tentatively concludes that if a licensee makes the
required certification and demonstrates substantial compliance with its
rules and policies and the Communications Act, the Commission will
renew the license. Licensees in the site-based services thus would not
be required to make a substantial service renewal showing. The
Commission tentatively concludes that the services enumerated in
proposed Sec. 1.949(d), below, should be subject to this certification
process
19. The Commission believes that adoption of a streamlined
certification process for renewal of licenses in these site-based
services will avoid unduly burdening renewal applicants and Commission
staff. At the same time, applying the certification process to site-
based services will ensure that renewed licenses in these services are
being operated as authorized. The Commission requests comment on its
proposed identification of Wireless Radio Services subject to the
certification requirement in lieu of a required substantial service
showing, which are enumerated in proposed Sec. 1.949(d), below.
Interested parties that recommend that the Commission's designation of
services be revised should specifically describe the proposed change
and the rationale for any change. The Commission also requests comment
whether, in its consideration of renewal applications involving site-
based licenses, there are any additional factors it should consider.
c. Geographically and Site-Based Licensed Services--Other Requirements
20. As explained above, the Commission proposes to adopt a renewal
showing requirement for renewal applicants in Wireless Radio Services
licensed by geographic area and a streamlined certification requirement
for renewal applicants in services licensed by site. Below, the
Commission proposes to apply a single regulatory compliance
demonstration requirement to all renewal applicants, whether licensed
by geographic area or by site. The Commission also proposes to prohibit
the filing of competing applications against such renewal applications
and that, if a renewal application is denied, the associated spectrum
generally will be returned to the Commission.
(i) Regulatory Compliance Demonstration
21. In the 700 MHz First Report and Order, 22 FCC Rcd at 8093, the
Commission stated that in addition to demonstrating that they are
providing substantial service to the public, renewal applicants must
demonstrate ``that they have substantially complied with all applicable
Commission rules, policies, and the Communications Act of 1934, as
amended, including any applicable performance requirements.'' Such a
regulatory compliance demonstration serves the public interest by
facilitating the Commission's evaluation of the character and other
qualifications of a renewal applicant. The Commission therefore
proposes that
[[Page 38963]]
renewal applicants in the geographic-area and site-based Wireless Radio
Services identified in proposed Sec. 1.949 be required to demonstrate
regulatory compliance.
22. To aid review of a renewal applicant's regulatory compliance,
the Commission tentatively concluded that an applicant must file copies
of all FCC orders finding a violation or an apparent violation of the
Communications Act or any FCC rule or policy by the licensee, an entity
that owns or controls the licensee, an entity that is owned or
controlled by the licensee, or an entity that is under common control
with the licensee (whether or not such an order relates specifically to
the license for which renewal is sought). This disclosure requirement
would apply to all orders finding such violations during the license
term for which renewal is sought, including orders that are, or could
be, the subject of administrative or judicial review. For purposes of
this disclosure requirement, relevant FCC orders would include, but
would not be limited to, any Notice of Apparent Liability for
Forfeiture, Forfeiture Order, Admonishment, Notice of Violation,
Memorandum Opinion and Order, or Order on Review finding a violation or
an apparent violation of the Communications Act or any FCC rule or
policy by the licensee. The Commission proposes to rely upon the
definition of ``affiliate'' in Sec. 1.2110(c)(5) of its rules to
define the scope of entities related to the renewal applicant that are
encompassed within these proposed disclosure requirements.
23. If there are no FCC orders finding violations of the
Communications Act or any FCC rule or policy, the Commission proposes
that a licensee certify the absence of any such findings as part of the
renewal application. The Commission seeks comment on the costs and
benefits of its proposed framework to licensees, interested parties,
and the Commission, and whether additional information would aid its
review of an applicant's regulatory compliance.
(ii) Prohibition of Competing Renewal Applications
24. Consistent with the Commission's renewal approach for the 700
MHz Commercial Services Band, the Commission tentatively concludes to
prohibit the filing of competing (i.e., mutually exclusive)
applications against renewal applications for the Wireless Radio
Services identified in Sec. 1.949, whether licensed by site or
geographic area. In the 700 MHz First Report and Order, the Commission
noted the potential costs and the burdens that competing applications
impose on both the Commission and licensees. The Commission's
experience has shown that the comparative renewal process can result in
protracted litigation that may be unduly burdensome for an incumbent
licensee and strain available Commission resources. A renewal applicant
may have to devote considerable resources to defend its authorization
against competing applications, resources that might otherwise be used
to improve service to the public.
25. The Commission finds that its established petition to deny
process affords interested parties an appropriate mechanism to
challenge the level of service and qualifications of licensees seeking
renewal. In this regard, the Commission found in the 700 MHz Report and
Order that the ability of a party to file a petition to deny and
participate in an auction of spectrum if the licensed spectrum is
returned to the Commission will provide sufficient incentives to
challenge inferior service or poor qualifications of licensees at
renewal. Interested parties that might otherwise file a competing
application would, under the Commission's proposed framework, have the
opportunity to participate in the auction of spectrum recovered from
any geographic licensee or to apply for spectrum recovered from a site-
based licensee (provided the spectrum did not revert to a geographic
overlay licensee). The Commission has repeatedly concluded that
spectrum auctions most likely will result in the licensing of spectrum
to a party that most highly values the spectrum. Moreover, as the
Commission has moved from comparative licensing regimes to competitive
bidding processes for awarding spectrum licenses, eliminating the
filing of competing renewal applications will harmonize the
Commission's renewal processes with those for granting initial
authorizations.
26. The Commission also finds that the public interest would be
served by preventing parties from interposing ``strike'' applications
against a renewal applicant for possible anticompetitive purposes, to
harass an applicant, or to exact a payoff. The comparative renewal
process was never intended to invite such abuse, and specious
challenges needlessly drain Commission resources and disserve the
public interest. While abuse of process is not the driving force behind
the Commission's tentative conclusion to eliminate comparative renewal
applications, the Commission nonetheless invites comment on whether
such abuse, either actual or potential, is a concern to renewal
applicants. The Commission seeks comment on the costs and benefits to
the public, the Commission, and licensees that may be associated with
the Commission's tentative conclusion to prohibit the filing of
competing renewal applications.
(iii) Return of Spectrum to Commission If Renewal Application Denied
27. Consistent with the Commission's approach for 700 MHz
Commercial Services Band licensees, the Commission tentatively
concludes that if a renewal applicant fails to demonstrate substantial
service (for services licensed by geographic area) or does not certify
that it is continuing to operate consistent with the applicable
construction notification(s) or authorization(s), as applicable (for
services licensed by site), its renewal application will be denied and
its licensed spectrum generally will be returned automatically to the
Commission for reassignment by auction or other mechanism that the
Commission concludes would serve the public interest. The Commission
notes that even if a licensee demonstrates substantial service or makes
the required certification, it could nevertheless find that a license
should not be renewed based on substantial regulatory non-compliance
(e.g., where a licensee has been found to have abused Commission
processes or committed fraud).
28. The Commission also notes that in the case of the non-renewal
of a site-based license, it has established a general policy of the
spectrum reverting to the geographic area licensee on the same
spectrum. The Commission proposes to continue its policy of having
spectrum revert to a geographic area licensee if an underlying site-
based authorization is not renewed. The Commission tentatively
concludes that adoption of these policies would serve the public
interest and invites comment on the Commission's findings.
3. Wireless Radio Services Excluded From Rulemaking
29. Finally, the Commission tentatively concludes that various
Wireless Radio Services should not be affected by the renewal proposals
in this rulemaking. Specifically, the Commission tentatively concludes
that it will not apply the revised renewal paradigm to Wireless Radio
Services where operations are licensed by rule (and thus there is no
``license'' to renew) or to Wireless Radio Services that can be
considered to involve a ``personal'' license or that have no
construction obligation. The following services are
[[Page 38964]]
licensed by rule and therefore there is no individual license to renew
(or to cancel automatically) and no basis to adopt any of the proposals
discussed above: Citizens Band Radio Service (47 CFR part 95, subpart
D); Dedicated Short Range Communications Service (On-Board Units
operating in the 5850-5925 MHz band) (47 CFR part 95, subpart L);
Family Radio Service (47 CFR part 95, subpart B); Low Power Radio
Service (47 CFR part 95, subpart G); Medical Device Radiocommunication
Service (47 CFR part 95, subpart I); Multi-Use Radio Service (47 CFR
part 95, subpart J); Personal Locator Beacons (47 CFR part 95, subpart
K); Radio Control Radio Service (47 CFR part 95, subpart C); and
Wireless Medical Telemetry Service (47 CFR part 95, subpart H).
30. The Commission also proposes to exclude from the proposals in
the Notice services that involve licenses that are granted on a
personal basis or that have no construction/performance requirement.
Without a construction obligation, the Commission's proposal to require
renewal applicants to make a showing of substantial service or to
certify that they are operating consistent with prior filings regarding
construction is inapplicable. These services include: 70-80-90 GHz
Service (licenses in these bands are non-exclusive and do not authorize
transmission unless/until each ``pencil beam'' link is registered in a
private-sector database) (47 CFR part 101, subpart Q); Aeronautical
Advisory Stations (Unicoms) (47 CFR part 87, subpart G); Aeronautical
Enroute and Aeronautical Fixed Stations (47 CFR part 87, subpart I);
Aeronautical Multicom Stations (47 CFR part 87, subpart H);
Aeronautical Search and Rescue Stations (47 CFR part 87, subpart M);
Aeronautical Utility Mobile Stations (47 CFR part 87, subpart L);
Aircraft Stations (47 CFR part 87, subpart F); Airport Control Tower
Stations (47 CFR part 87, subpart O); Alaska Fixed Stations (47 CFR
part 80, subpart O); Amateur Radio Service (47 CFR part 97); Automatic
Weather Stations (47 CFR part 87, subpart S); Aviation Support Stations
(47 CFR part 87, subpart K); Commercial Radio Operator License Program
(47 CFR part 13); Flight Test Stations (47 CFR part 87, subpart J);
General Mobile Radio Service (47 CFR part 95, subpart A); Maritime
Support Stations (47 CFR part 80, subpart N); part 80 Operational Fixed
Stations (47 CFR part 80, subpart L); Private Coast Stations and Marine
Utility Stations (47 CFR part 80, subpart K); Radiodetermination
Service Stations (47 CFR part 80, subpart M); Ship Stations (47 CFR
80.13(c)); and Wireless Broadband Services in the 3650-3700 MHz Band
(licenses in these bands are nationwide, non-exclusive, and do not
authorize transmission unless and until each fixed or base station is
registered; an unlimited number of base and fixed stations may be
registered (not licensed) in this band on a nationwide, non-exclusive
basis) (47 CFR part 90, subpart Z).
31. The Commission requests comment on its proposed identification
of Wireless Radio Services to be excluded entirely from its revised
renewal rules. Interested parties that recommend that the Commission's
designation of services be revised should describe in detail the nature
of the proposed change and the rationale for any such change.
B. Permanent Discontinuance of Operations for Wireless Radio Services
32. The Commission proposes to adopt a uniform regulatory framework
governing the permanent discontinuance of operations for Wireless Radio
Services under parts 22, 24, 27, 80, 90, 95 and 101 of the Commission's
rules. The Commission's goal is to adopt a standardized approach for
all services, whether licensed by geographic area or by site, to the
maximum extent practicable.
33. Because an authorization will automatically terminate, without
specific Commission action, if service is permanently discontinued, it
is imperative that the Commission's rules provide a clear and
consistent definition of permanent discontinuance of operations; they
do not. The definition varies by service, and some service rules
contain no clear definition. The Commission believes that standardizing
the definition of permanent discontinuance of operations will serve the
public interest by providing licensees and other interested parties
much needed certainty and by affording similarly-situated licensees and
like services comparable regulatory treatment.
1. Current Requirements
34. Under Sec. 1.955(a)(3) of the Commission's rules (47 CFR
1.955(a)(3)), ``[t]he Commission authorization or the individual
service rules govern the definition of permanent discontinuance for
purposes of this section.'' The rule provides that a ``station that has
not provided service to subscribers for 90 continuous days is
considered to have been permanently discontinued * * *.'' Section
90.157(a), which applies to most part 90 services, provides that ``[a]n
authorization shall cancel automatically upon permanent discontinuance
of operations.'' The rule further provides that ``for the purposes of
this section, any station which has not operated for one year or more
is considered to have been permanently discontinued.''
35. In contrast to the part 22 and part 90 rules, many services,
including those authorized by competitive bidding (such as the
Commission's part 24 PCS rules and part 27 Miscellaneous Wireless
Communication Services rules) contain no definition of permanent
discontinuance. Thus, subject to meeting any service-specific
construction and renewal requirements, a part 24 or part 27 licensee
might conclude that it could discontinue service for a long period
without fear of automatic license termination. Licensees in these
services thus might retain their spectrum while it lies idle for
extended periods, while part 22 licensees (including cellular service
licensees, which may provide directly competing services) are subject
to automatic license termination if they discontinue service to
subscribers for 90 days (120 days with a 30-day extension). The public
interest is not served by such marked regulatory disparities.
2. Proposed Requirements
36. The Commission believes that the adoption of a uniform
discontinuance of service rule for parts 22, 24, 27, 80, 90, 95 and 101
Wireless Radio Services will serve the public interest by ensuring that
similarly situated licensees are afforded comparable regulatory
treatment. Under the Commission's proposal, part 24 and part 27
licensees would be definitely subject to the consequence of a
discontinuance of service rule--i.e., automatic termination of an
authorization. The Commission also believes that adoption of uniform
permanent discontinuance policies will serve the public interest by
ensuring that valuable spectrum is not underutilized, and by providing
certainty to licensees, investors, and other interested parties, which
will facilitate business and network planning. Accordingly, the
Commission seeks comment on the appropriate definition of permanent
discontinuance of operations and whether to adopt a single definition
for Wireless Radio Services licensed either by geographic area or by
site.
37. The Commission seeks comment on the length of the period that
should be used to define permanent discontinuance of service that would
trigger automatic license termination. The Commission's goal is to
strike an appropriate balance between providing
[[Page 38965]]
licensees operational flexibility while ensuring that spectrum does not
lie fallow. As noted above, part 22 licensees are now afforded up to a
120-day discontinuance of service period. Technologies continue to
evolve rapidly and the Commission seeks to encourage technological
innovation by its licensees. The Commission believes that a
discontinuance of service period longer than 90 or 120 days, such as
180 days, might better enable licensees to implement technology
upgrades involving reconfiguration and possible relocation of cell
sites and other network elements.
38. The Commission seeks comment on the costs and benefits of
defining permanent discontinuance as 180 consecutive days or 12
consecutive months during which a licensee does not operate or, for
certain services, does not serve at least one subscriber that is not
affiliated with, controlled by, or related to the providing carrier.
The Commission also requests that interested parties address whether a
180-day or 12-month discontinuance period would enable spectrum
warehousing.
39. Subject to certain limited exceptions noted below, the
Commission tentatively concludes that for any Wireless Radio Service
for which prior approval to discontinue service is not required,
permanent discontinuance of service should be defined as 180
consecutive days during which a licensee does not operate or, in the
case of Commercial Mobile Radio Service (CMRS) providers, does not
provide service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier. The Commission
proposes to consolidate its permanent discontinuance of service
requirements via a new Sec. 1.953 (below), and seeks detailed comment
on the proposed language of Sec. 1.953, and all aspects of its
proposal. The Commission notes that a new Sec. 1.953 would require a
licensee that permanently discontinues service to notify the Commission
of the discontinuance by filing FCC Form 601 or FCC Form 605 requesting
license cancellation. The Commission seeks comment on this provision
and whether there may be alternatives to a self-reporting requirement.
40. The Commission also tentatively concludes that its proposed
permanent discontinuance rule should apply commencing on the date a
licensee makes its initial construction showing or notification. Under
this approach, if a CMRS provider makes a five-year construction
showing, it would have to serve at least one subscriber that is not
affiliated with, controlled by, or related to it in any ensuing 180-day
period or else it would be deemed to have permanently discontinued
service and its license would automatically terminate without specific
Commission action. The Commission questions whether in the Narrowband
PCS, for example, it would be inequitable for it to reclaim spectrum
from a licensee that meets its five-year construction obligation, and
then discontinues operations for 180 days before the end of its license
term, while only applying a ten-year construction obligation to
licensees that elect to demonstrate substantial service. The Commission
seeks comment whether, under these circumstances, the public interest
would be better served if it applied its permanent discontinuance of
operations rule only after the initial license term.
41. The Commission notes that if it were to adopt a 180-day
discontinuance period, a licensee could request more time to implement
a network upgrade or to complete a distress sale, for example. The text
of proposed Sec. 1.953(f) sets forth a process under which a request
for a longer discontinuance period may be filed for good cause, and
subject to the requirement that it is filed at least 30 days before the
end of the discontinuance period. Under the proposed rule, the filing
of a request would automatically extend the discontinuance period a
minimum of the latter of an additional 30 days or the date upon which
the Wireless Telecommunications Bureau acts on the request. The
Commission seeks comment on these proposed provisions.
42. In addition, the Commission tentatively concludes that
operation of so-called channel keepers (e.g. devices that transmit test
signals, tones and/or color bars) will not constitute operation for the
purposes of the Commission's permanent discontinuance rules. The
Commission seeks comment below on the application of this proposed
framework to various services.
a. Part 22 Public Mobile Services
43. The Commission's part 22 rules govern operations in the Paging
and Radiotelephone Service, Rural Radiotelephone Service, Air-Ground
Radiotelephone Service, Cellular Radiotelephone Service, and Offshore
Radiotelephone Service. Under Sec. 22.317 of the Commission's rules,
``any station that has not provided service to subscribers for 90
continuous days is considered to have been permanently discontinued,
unless the applicant notified the FCC otherwise prior to the end of the
90 day period and provided a date on which operations will resume,
which date must not be in excess of 30 additional days.'' Service to
subscribers is defined as ``[s]ervice to at least one subscriber that
is not affiliated with, controlled by or related to the providing
carrier.'' The Commission seeks comment on whether for each part 22
service (some of which are licensed by geographic area and some by
site), the public interest would be served by defining permanent
discontinuance as 180 consecutive days during which a licensee does not
provide service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier. The Commission
seeks specific comment on whether the additional operational
flexibility that would be afforded by a 180-day or longer period would
be beneficial.
b. Part 24 Personal Communications Services
44. Section 1.955(a)(3) of the Commission's rules provides that an
authorization will ``automatically terminate, without specific
Commission action, if service is permanently discontinued.'' The rule
also provides that ``[t]he Commission authorization or the individual
service rules govern the definition of permanent discontinuance for
purposes of this section.'' For many of the Commission's services
authorized by competitive bidding (such as PCS), the specific service
rules do not define permanent discontinuance of operations.
45. The Commission seeks comment on whether, for Broadband and
Narrowband PCS, the public interest would be served by defining
permanent discontinuance as 180 consecutive days during which a
licensee does not provide service to at least one subscriber that is
not affiliated with, controlled by, or related to the providing
carrier. The Commission notes that the mid- and end-of-term performance
requirements for these services vary based on the size of a market area
and authorized bandwidth. Moreover, a narrowband PCS licensee may elect
to forego making a five-year mid-term geographic area or population-
based construction showing and, instead, elect to demonstrate
substantial service by the end of its license term.
c. Part 27 Miscellaneous Wireless Communications Services
46. The Commission's part 27 Miscellaneous Wireless Communications
Services include: (1) 700 MHz Commercial Service (Lower and Upper 700
MHz Bands); (2) 700 MHz Guard Band Service; (3) 1.4 GHz Service; (4)
1.6 GHz Service; (5) Advanced Wireless Service (AWS-1,
[[Page 38966]]
1710-1755 MHz, 2110-2155 MHz); (6) Wireless Communications Service
(WCS, 2305-2320 and 2345-2360 MHz), and (7) the Broadband Radio Service
and Educational Broadband Service. Part 27 does not define permanent
discontinuance for any of these services. However, section 27.66(b) of
the Commission's rules requires fixed common carriers in any of these
services to obtain prior Commission authorization before voluntarily
discontinuing service to a community or part of a community, which will
be granted ``within 31 days after filing if no objections have been
received.'' Fixed non-common carrier licensees, on the other hand, may
voluntarily discontinue service without prior Commission authorization
and need only provide the Commission notice within seven days of such
discontinuance.
47. Many part 27 licensees must, as a performance requirement
(i.e., construction requirement), make a showing of substantial service
in their license area during their license term. For these part 27
licensees, the Commission proposes to apply the permanent
discontinuance rule effective on the date that a licensee makes its
performance showing. Thus, if a licensee makes its substantial service
performance showing in year six of its initial license term, thereafter
it must serve at least one subscriber that is not affiliated with,
controlled by, or related to it in any ensuing 180-day period or else
it would be deemed to have permanently discontinued service and its
license would automatically terminate without specific Commission
action. The Commission seeks comment on application of its proposed
permanent discontinuance rule to licensees that must make a showing of
substantial service in their license area within their initial license
term.
48. Rather than demonstrate substantial service as their
performance requirement, Part 27 licensees that hold 700 MHz Commercial
Services Band authorizations for Blocks A, B, C, and E must satisfy
population-based or geographic-area performance requirements. Licensees
in these spectrum blocks must make their initial construction showing
no later than June 13, 2013, or four years from license grant if an
initial authorization is granted after June 13, 2009. The Commission
proposes to apply a permanent discontinuance rule to these licensees
effective upon the date that a licensee makes its first performance
showing. The Commission notes that, unlike Narrowband PCS licensees,
this group of 700 MHz licensees will not have the option of electing to
show substantial service at the end of their license term in lieu of
making an interim performance showing. Under these circumstances, the
Commission finds the public interest would be served if it applies its
proposed permanent discontinuance rule effective upon a licensee making
its first performance showing. The Commission seeks comment on its
findings and application of the proposed permanent discontinuance rules
to licensees for 700 MHz Blocks A, B, C, and E.
49. Broadband Radio Service and Educational Broadband Service. The
Commission is implementing a new band plan for BRS and EBS. To enable
licensees to transition to the new band plan and deploy new and
innovative wireless services, the Commission eliminated its
discontinuance of service rules, and adopted a substantial service
standard under which all licensees must demonstrate substantial service
on or before May 1, 2011. The Commission tentatively concludes that it
would not serve the public interest to re-impose a discontinuance of
service rule on BRS and EBS at this time. The transition to the new
band plan is ongoing, and licensee transition reports indicate that
many are discontinuing existing operations as they transition.
Accordingly, the Commission proposes to maintain the right of BRS and
EBS licensees to discontinue service during the transition, and seek
comment on the appropriate date thereafter on which to apply
discontinuance of service rules to BRS and EBS.
d. Part 80 Safety and Special Radio Services
50. Part 80, which governs stations in the Maritime Services, does
not currently define permanent discontinuance of operations. Section
80.31 of the Commission's rules provides that ``[w]ireless
telecommunications carriers subject to this part must comply with the
discontinuance of service provisions of part 63 of this chapter,'' but
this rule has limited applicability. The Commission seeks comment on
whether to define permanent discontinuance of service for part 80
stations as 180 consecutive days during which a licensee does not
operate or, in the case of certain stations, does not provide service
to at least one subscriber that is not affiliated with, controlled by,
or related to the providing carrier.
e. Part 90 Private Land Mobile Radio Services
51. Section 90.157(a) of the Commission's rules provides that
``[a]n authorization shall cancel automatically upon permanent
discontinuance of operations.'' The rule further provides that
``[u]nless stated otherwise in this part or in a station authorization,
for the purposes of this section, any station which has not operated
for one year or more is considered to have been permanently
discontinued.'' This rule applies to all part 90 services, except
trunked Specialized Mobile Radio (SMR) Service, which is discussed
below. Some part 90 services are used for seasonal operations such as
ski resort operations or beach patrols. Because such operations may be
conducted for less than six months in any given 12-month period, the
Commission intends to retain the one-year discontinuance of operations
rule. The Commission does, however, propose to modify this rule by also
requiring service to at least one unaffiliated subscriber during the
one-year period if the licensed spectrum is used for Commercial Mobile
Radio Service (CMRS) purposes. The Commission would thus define
permanent discontinuance for services licensed as CMRS under part 90 as
a 12-month period during which a licensee does not provide service to
at least one subscriber that is not affiliated with, controlled by, or
related to the providing carrier. Licenses used for private, internal
communications do not involve the provision of service to unaffiliated
subscribers, so the Commission proposes to retain the existing
discontinuance of operations test for these types of licenses. The
Commission seeks comment on its proposed approach.
f. Part 90 Specialized Mobile Radio Service
52. Section 90.631(f) of the Commission's rules, which governs
permanent discontinuance of trunked SMR Service operations, is similar
to Sec. 22.317, governing permanent discontinuance of operations for
all part 22 Public Mobile Services. The rule provides that an SMR
``licensee with facilities that have discontinued operations for 90
continuous days is presumed to have permanently discontinued
operations,'' unless it notifies the Commission ``prior to the end of
the 90 day period and provides a date on which operation will resume,
which date must not be in excess of 30 additional days.'' Under the
rule, a trunked SMR base station ``is not considered to be placed in
operation unless at least two associated mobile stations, or one
control station and one mobile station, are also placed in operation.''
The Commission proposes to conform its requirements for permanent
[[Page 38967]]
discontinuance for part 90 trunked SMR and part 22 Public Mobile
Services. Accordingly, the Commission seeks comment on whether, for
part 90 trunked SMR Service, the public interest would be served by
defining permanent discontinuance as 180 consecutive days during which
a licensee does not provide service to at least one subscriber that is
not affiliated with, controlled by, or related to the providing
carrier. The Commission encourages parties to address whether the
practical effect of the rule would be undermined by not requiring
service to at least two associated mobile stations, or one control
station and one mobile station, as Sec. 90.631(f) currently provides.
g. Part 95 218-219 MHz Service
53. Part 95 does not currently define permanent discontinuance of
operations for licensees in the 218-219 MHz Service. The Commission
seeks comment on whether for 218-219 MHz Service providers, the public
interest would be served by defining permanent discontinuance of
operations as 180 consecutive days during which a licensee does not
provide service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier.
h. Part 101 Fixed Microwave Services
54. Section 101.65(b) of the Commission's rules provides that any
part 101 ``station which has not operated for one year or more is
considered to have been permanently discontinued.'' The Commission
notes that Sec. 101.65(a), which applies to all part 101 stations,
provides that ``a license will be automatically forfeited in whole or
in part * * * upon the voluntary removal or alteration of the
facilities, so as to render the station not operational for a period of
30 days or more.'' The Commission seeks comment on the relationship of
this 30-day rule to its proposed 180-day permanent discontinuance rule,
including whether the rule should be eliminated or modified in any
respect.
C. Geographic Partitioning and Spectrum Disaggregation Rules and
Policies
55. The Commission tentatively concludes that the public interest
would be well served if the Commission revises its geographic
partitioning and spectrum disaggregation rules to require each party to
such an arrangement to independently satisfy construction obligations
under the applicable service rules. The Commission's experience with
implementation of partitioning and disaggregation across myriad
wireless radio services indicates that parties can, and sometimes do,
manipulate the requirements in ways that result in spectrum in some
services lying fallow for lengthy periods. The Commission therefore
seeks to eliminate any provisions in its partitioning and
disaggregation rules that enable parties to avoid timely construction.
56. The Commission's approach is intended to ensure that valuable
spectrum does not lie fallow to the public's detriment, while still
affording wireless service providers flexibility to configure
geographic area licenses and spectrum blocks to meet their operational
needs. The Commission's approach also will provide licensees greater
regulatory certainty by eliminating service-specific inconsistencies
regarding satisfaction of performance requirements when spectrum is
partitioned or disaggregated. Harmonization of these rules across
wireless radio services, moreover, will place licensees in different
services on more comparable regulatory footing to the extent that
partitioning or disaggregation is permitted in specific services.
1. Current Requirements
57. In the 1996 CMRS Partitioning and Disaggregation Order, 11 FCC
Rcd 21831 (1996), the Commission adopted geographic partitioning and
spectrum disaggregation rules for Broadband PCS. The Commission sought
to provide licensees flexibility to determine the amount of spectrum
they will occupy and the geographic area they will serve. The
Commission echoed these goals when it subsequently adopted partitioning
and disaggregation rules akin to the PCS rules on a service-by-service
basis, including in the 800 MHz and 900 MHz Specialized Mobile Radio
(SMR) Services, 39 GHz Service, Wireless Communications Service (WCS),
220-222 MHz Service, and Cellular Radiotelephone Service.
58. In adopting partitioning and disaggregation rules and policies,
the Commission has sought to promote multiple, albeit sometimes
competing, goals. The Commission specifically envisioned that
partitioning and disaggregation would expedite the provision of service
to rural and other underserved areas of America as well as to niche
markets. These goals remain paramount today as the Commission develops
a national strategy to extend the promise of broadband to all
Americans.
59. The Commission also has previously determined that partitioning
and disaggregation would promote the efficient use of spectrum by
providing licensees with the flexibility to make offerings directly
responsive to market demands for particular types of service. It thus
adopted rules that provide geographic-area licensees discretion to
determine the amount of spectrum they will occupy and the area they
will serve consistent with their business plan, which may not
necessarily coincide with predetermined spectrum blocks and geographic
areas of the licenses in a specific service. In the Upper 700 MHz First
Report and Order, 15 FCC Rcd 476, 507 (2000), for example, the
Commission ``permit[ted] geographic partitioning of any service area
defined by the partitioner and partitionee, spectrum disaggregation
without restriction on the amount of spectrum to be disaggregated and
combined partitioning and disaggregation.'' The Commission also sought
to increase competition through its partitioning and disaggregation
polices by enabling market entry. Numerous licensees and others have
availed themselves of these options.
60. While seeking to afford licensees the significant flexibility
described above, the Commission also has sought to ensure that
licensees meet applicable service performance obligations (i.e.,
construction and operation). Although the Commission has reiterated
this goal when specifying performance requirements for partitioning and
disaggregation across numerous wireless radio services, the text of the
rules varies considerably across services, and often without a detailed
explanation for the variations. Some of these variations have enabled
parties to manipulate the requirements in unforeseen ways that result
in spectrum in some services lying fallow for lengthy periods. The
Commission seeks to rectify this problem.
2. Proposed Requirements
61. The Commission tentatively concludes that the public interest
would be better served if it revises its rules to require each party to
a partitioning, disaggregation, or combination of both to independently
satisfy the service-specific construction obligations. Accordingly, the
Commission proposes to adopt an independent construction requirement
for each party to a geographic partitioning or spectrum disaggregation
in those services that currently provide for partitioning or
disaggregation. This approach would eliminate any provisions in the
Commission's partitioning and disaggregation rules that enable parties
to avoid timely construction. The Commission's goal is to harmonize its
[[Page 38968]]
disparate partitioning and disaggregation rules to address these
concerns while affording licensees significant flexibility to structure
their coverage areas and spectrum use as envisioned when these rules
were adopted.
62. Specifically, the Commission tentatively concludes that the
public interest will be served by requiring each party to a
partitioning, disaggregation, or combination of both, in any of the
services enumerated in proposed rule Sec. 1.950(b), to individually
meet the applicable service performance requirements (both construction
and operation) for its license.
63. The Commission proposes to harmonize and consolidate all of the
Commission's partitioning and disaggregation requirements in a new
Sec. 1.950 to the maximum extent practicable. This section will apply
to the more than 20 wireless radio services in which geographic
partitioning or spectrum disaggregation is now permitted. The proposed
language for the new Sec. 1.950 is set forth below The Commission
seeks detailed comment on the wording of the proposed Sec. 1.950 and
all aspects of the Commission's proposal, including whether imposing a
construction obligation on both parties to a partitioning or
disaggregation could in some cases discourage publicly beneficial
arrangements.
64. In the PCS disaggregation context (CMRS Partitioning and
Disaggregation Order, 11 FCC Rcd at 21865), the Commission stated that
``[b]ecause our rules do not dictate a minimum level of spectrum usage
by the original PCS licensee, we believe it would be inconsistent to
impose separate construction requirements on both disaggregator and
disaggregatee for their respective spectrum portions.'' Does the fact
that the Commission does not require minimum spectrum usage in many
services militate against requiring both parties to a disaggregation to
separately meet performance requirements? The Commission requests any
commenters that take this position to support their arguments with as
much detail as possible and to provide any appropriate supporting
facts. The Commission also notes that despite its foregoing statement,
it explained that ``[s]hould both parties agree to share the
responsibility for meeting the construction requirements and either
party later fail to do so, both parties' licenses will be subject to
forfeiture.''
65. The Commission also observed in the CMRS Partitioning and
Disaggregation Order (11 FCC Rcd at 21864) that ``[t]he goal of our
construction requirements in both the partitioning and disaggregation
contexts is to ensure that the spectrum is used to the same degree that
would have been required had the partitioning or disaggregation
transaction not taken place.'' It is paramount that the Commission's
construction requirements are not circumvented. Indeed, section
309(j)(4)(B) of the Communications Act requires that rules for
auctionable services ``include performance requirements, such as
appropriate deadlines and penalties for performance failures, to ensure
prompt delivery of service to rural areas, to prevent stockpiling or
warehousing of spectrum by licensees or permittees, and to promote
investment in and rapid deployment of new technologies and services.''
The Commission thus requests comment regarding whether its proposal
will eliminate the opportunities that exist under the Commission's
current partitioning and disaggregation rules that may enable a party
to avoid construction. The Commission also seeks comment on whether
adoption of this proposal would lead to more efficient spectrum usage.
Parties should support their positions with detailed comments and
specific facts.
66. The Commission seeks comment on whether the public interest
would be served by making any exceptions to the uniform, bright-line
construction rules the Commission is proposing today for any service in
which partitioning or disaggregation is permitted. For example, the
Commission notes that 700 MHz spectrum licenses won in Auction 73 are
subject to more stringent performance requirements than most Wireless
Radio Services, including four-year and end-of-term construction
benchmarks and keep-what-you-use policies. For these licenses, a
disaggregator, disaggregatee, or both working together can meet the
construction benchmarks for the entire license area. If neither party
meets the four-year benchmark, then both parties' license terms will be
reduced by two years. Likewise, if neither party meets the end-of-term
benchmark, both will be subject to an automatic keep-what-you-use rule,
and will lose their authorization for unserved portions of their
license areas. The Commission seeks comment on whether the Commission
should continue to afford 700 MHz spectrum licenses won in Auction 73
such treatment, or whether the public interest would be better served
by requiring each party separately to meet applicable construction
benchmarks.
67. Finally, while the Commission tentatively concludes that its
proposal discussed above would be the best way to balance competing
factors and to support partitioning and disaggregation arrangements
that further the public interest, it welcomes any additional suggested
rule or policy revisions that commenters might want to suggest. The
Commission invites comment on whether there are other available
mechanisms to deter circumvention of construction requirements under
partitioning and disaggregation arrangements. The Commission requests
that any alternative proposals be explained in detail. This explanation
should include the goals of the proposal, and how adoption of the
proposal would achieve such goals.
III. Procedural Matters
Ex Parte Rules--Permit-but-Disclose
68. This rulemaking shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided they are disclosed pursuant to the Commission's 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 47 CFR
1.1206(b).
Comment Period and Procedures
69. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415 and 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments and reply comments should refer to WT Docket
No. 10-112, and 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.
[ssbox] 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.
Filers should follow the instructions provided on the Web site for
submitting comments.
[ssbox] 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
[[Page 38969]]
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 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.
[ssbox] 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. The filing hours are
8 a.m. to 7 p.m. All hand deliveries must be held together with rubber
bands or fasteners. Any envelopes must be disposed of before entering
the building.
[ssbox] 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.
[ssbox] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street, SW., Washington DC 20554.
70. Parties should send a copy of their filings in this proceeding
via e-mail or U.S. mail to: Richard Arsenault, Chief Counsel, Mobility
Division, Wireless Telecommunications Bureau,
[email protected], and Michael Connelly, Attorney Advisor,
Mobility Division, Wireless Telecommunications Bureau,
[email protected], 445 12th Street, SW., Washington, DC 20554.
Parties should also provide one copy of their filings to the
Commission's copy contractor, Best Copy and Printing, Inc. (BCPI),
Portals II, Room CY-B402, 445 12th Street, SW., Washington, DC 20554,
(202) 488-5300, or via e-mail to [email protected].
71. Documents in WT Docket No. 10-112 will be available for public
inspection and copying during business hours at the FCC Reference
Information Center, Portals II, Room CY-A257, 445 12th Street, SW.,
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].
72. 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).
Initial Regulatory Flexibility Analysis
73. 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 the NPRM. 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 NPRM
provided in paragraph 116 of the NPRM. The Commission will send a copy
of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration (SBA).
Need for, and Objectives of, the Proposed Rules
74. In the NPRM, the Commission takes three actions. First, the
NPRM proposes to adopt uniform renewal polices for licenses in Wireless
Radio Services (WRS), based on the Commission's renewal framework for
the 700 MHz Commercial Services Band. Specifically, the NPRM
tentatively concludes to apply the Commission's 700 MHz Commercial
Services Band framework to services licensed by geographic area and,
with certain refinements, to services licensed on a site-by-site basis.
Second, the NPRM proposes to harmonize the Commission's rules regarding
the permanent discontinuance of operations by WRS licensees. Third, the
NPRM proposes to standardize the Commission's requirements regarding
the responsibilities of parties to geographic partitioning and spectrum
disaggregation arrangements.
75. The NPRM proposes to harmonize the Commission's widely varying
wireless license renewal requirements. Specifically, based on the
Commission's 700 MHz renewal paradigm, applicants for geographic-area
licenses would have to file a renewal showing that demonstrates the
level of service they are providing to the public, and that they are
compliant with the Commission's rules and policies and the
Communications Act. For site-based services, renewal applicants would
have to certify that they are operating consistent with their
construction notification (NT) or most recent authorization, when no NT
is required. The filing of applications that are mutually exclusive
with a renewal application would be prohibited. If a renewal is denied,
the spectrum in most cases would be returned to the Commission for
reassignment, generally through competitive bidding.
76. The Commission's permanent discontinuance of operations rules
are intended to provide licensees operational flexibility, while
preventing spectrum warehousing. The definition of permanent
discontinuance, however, varies by service, and some services contain
no definition, enabling warehousing. The NPRM seeks comment on whether
to adopt a uniform definition for discontinuance of operations (such as
180 days) for all wireless services that would trigger automatic
license termination.
77. The Commission's experience with partitioning and
disaggregation across myriad wireless services indicates that parties
can, and sometimes do, manipulate requirements in ways that result in
spectrum lying fallow. The wording of these rules varies, and the
responsibilities of parties are inconsistent. The NPRM seeks to place
licensees in different services on comparable regulatory footing and
close regulatory loopholes. The NPRM tentatively concludes that each
party to a partitioning or disaggregation should independently satisfy
construction obligations.
Legal Basis
78. The proposed action is taken under Sec. Sec. 1, 2, 4(i), 301,
303, 308, 309, and 332 of the Communications Act of 1934, 47 U.S.C.
151, 152, 154(i), 301, 303, 308, 309, 332.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
79. 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 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 SBA.
80. Small Businesses. Nationwide, there are a total of
approximately 29.6 million small businesses, according to the SBA.
81. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
[[Page 38970]]
82. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined as ``governments of cities, towns, townships,
villages, school districts, or special districts, with a population of
less than fifty thousand.'' As of 2002, there were approximately 87,525
governmental jurisdictions in the United States. This number includes
38,967 county governments, municipalities, and townships, of which
37,373 (approximately 95.9 percent) have populations of fewer than
50,000, and of which 1,594 have populations of 50,000 or more. Thus,
the Commission estimates the number of small governmental jurisdictions
overall to be 85,931 or fewer. In completing this IRFA, the Commission
recognizes that small governmental jurisdictions may be WRS licensees.
83. Wireless Telecommunications Carriers (except Satellite). Since
2007, the Census Bureau has placed wireless firms within this new,
broad, economic census category. Prior to that time, such firms were
within the now-superseded categories of ``Paging'' and ``Cellular and
Other Wireless Telecommunications.'' Under the present and prior
categories, the SBA has deemed a wireless business to be small if it
has 1,500 or fewer employees. Because Census Bureau data are not yet
available for the new category, the Commission will estimate small
business prevalence using the prior categories and associated data. For
the category of Paging, data for 2002 show that there were 807 firms
that operated for the entire year. Of this total, 804 firms had
employment of 999 or fewer employees, and three firms had employment of
1,000 employees or more. For the category of Cellular and Other
Wireless Telecommunications, data for 2002 show that there were 1,397
firms that operated for the entire year. Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more. Thus, the Commission estimates that the
majority of wireless firms are small.
84. The Commission has determined that there are approximately
197,812 licensees in the Wireless Radio Services affected by the NPRM,
as of May 18, 2010; the Commission does not know how many licensees in
these bands are small entities, as the Commission does not collect that
information for these types of entities. The Commission notes that,
under the action it proposes in the NPRM, entities, including small
businesses, will have to comply with a single set of rules regarding
license renewal in the WRS. The Commission does not know how many
entities that will file for WRS license renewal will be small entities.
Thus, the Commission assumes, for purposes of this IRFA, that all
prospective licensees are small entities as that term is defined by the
SBA or by the Commission's proposed small business definitions for
these bands.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
85. In paragraphs 16-32 and 37-39 of the NPRM, the Commission sets
forth the rules with which geographic-area licensees in the Wireless
Radio Services must comply; the rules for site-based licensees are
specified in paragraphs 33-35 and 37-39. These rules would be generally
applicable to all WRS licensees, large and small. For an incumbent
geographic area WRS licensee to expect to renew its license, it must
generally follow the three-part approach the Commission established for
the 700 MHz Commercial Services Band, i.e., (1) renewal applicants must
demonstrate that they are providing substantial service to the public
(or, when allowed under the relevant service rules, for private,
internal communication), and substantially complying with the
Commission's rules (including any applicable performance requirements)
and policies and the Communications Act, (2) competing renewal
applications are prohibited, and (3) if a license is not renewed, the
associated spectrum is returned to the Commission for reassignment.
Regarding the substantial service component of the first prong, the
Commission has indicated that substantial service in the renewal
context encompasses Commission consideration of a variety of factors
including the level and quality of service, whether service was ever
interrupted or discontinued, whether service has been provided to rural
areas, and any other factors associated with a licensee's level of
service to the public.
86. In paragraph 27, the Commission lists factors that WRS
licensees in various services are required to address to demonstrate
that the applicant should receive a renewal expectancy. The list
includes the following factors: A description of the licensee's current
service in terms of geographic coverage and population served; an
explanation of the licensee's record of expansion, including a time
table for the construction of new sites to meet changes in demand for
service; a description of its investments in its system; a list,
including addresses, of all cell transmitter stations constructed;
identification of the type of facilities constructed and their
operational status; consideration of whether the licensee is offering a
specialized or technologically sophisticated service that does not
require a high level of coverage to be of benefit to customers;
consideration of whether the licensee's operations service niche
markets or focus on serving populations outside of areas served by
other licensees; and consideration of whether the licensee's operations
serve populations with limited access to telecommunications services.
87. In paragraphs 37-39, applicable to both geographically and
site-based services, the Commission indicates that in addition to
making the requisite substantial service showing, a WRS licensee
seeking renewal of its license must further indicate that it has
substantially complied with all applicable Commission rules, policies,
and the Communications Act of 1934, as amended, including any
applicable performance requirements; the Commission believes such a
showing will assist in character and other evaluations of the
applicant. Included in this showing are the filing, if any, of all FCC
orders, including letter rulings, finding a violation or an apparent
violation of the Communications Act or any FCC rule or policy by the
licensee, an entity that owns or controls the licensee, an entity that
is owned or controlled by the licensee, or an entity that is under
common control with the licensee (whether or not such an order relates
specifically to the license for which renewal is sought). The
Commission also proposes that a renewal applicant must provide a list
of any pending FCC proceedings or investigations that relate to a
potential violation of the Communications Act or any FCC rule or policy
by the licensee, an entity that owns or controls the licensee, an
entity that is owned or controlled by the licensee, or an entity that
is under common control with the licensee. In the event there is no FCC
order finding violations, the applicant will so certify.
88. Regarding requirements unique to site-based WRS licensees, in
paragraphs 33-35, the Commission proposes to modify FCC Form 601 to
require such renewal applicants to certify that they continue to
operate consistent with the applicable filed construction
notification(s) or most recent authorization(s) (when no notification
was required to be filed under the Commission's rules); the licensee
can expect license renewal if it files such certification and
demonstrates substantial compliance with other applicable rules.
[[Page 38971]]
89. Harmonization of the rules in the affected wireless services
will not impose any more administrative burden on a licensee than the
licensee must currently comply with. The Commission believes its
proposed action will have the effect of lessening the recordkeeping
burden by making the renewal process more straight-forward; this is
particularly so for an FCC licensee with authorizations in more than
one of the affected services.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
90. The RFA requires an agency to describe any significant
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) an
exemption from coverage of the rule, or any part thereof for small
entities.
91. The Commission believes that the adoption of uniform renewal
policies for licensees in the various Wireless Radio Services and
harmonization of its rules regarding the permanent discontinuance of
operations by WRS licensees will benefit all WRS applicants and
licensees, regardless of size. The Commission believes that complying
with the current license renewal rules, varied as they are, has the
potential to place a particular burden on the limited financial
resources of small businesses. The Commission therefore believes that
uniform renewal rules throughout the Wireless Radio Services, and
harmonizing its rules regarding the definition of, and what
constitutes, permanent discontinuance of operation, will have the
intended consequences of assisting small entities that are WRS
licensees.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
92. None.
Initial Paperwork Reduction Analysis
93. This document contains proposed new and modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific
comment on how it might ``further reduce the information collection
burden for small business concerns with fewer than 25 employees.''
IV. Ordering Clauses
94. Pursuant to Sec. Sec. 1, 2, 4(i), 301, 303, 308, 309, and 332
of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 301,
303, 308, 309, 332, this Notice of Proposed Rulemaking is hereby
adopted.
95. Notice is hereby given of the proposed regulatory changes
described in this Notice of Proposed Rulemaking, and that comment is
sought on these proposals.
96. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Notice of
Proposed Rulemaking and Order, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects
47 CFR Part 1
Administrative practice and procedure, Communications common
carriers, Penalties, Radio, Reporting and recordkeeping requirements,
Telecommunications, Television.
47 CFR Part 22
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
47 CFR Part 24
Administrative practice and procedure, Communications common
carriers, Radio, Reporting and recordkeeping requirements,
Telecommunications.
47 CFR Part 27
Communications common carriers, Radio.
47 CFR Part 90
Administrative practice and procedure, Common carriers, Radio,
Reporting and recordkeeping requirements.
47 CFR Part 101
Radio, Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 1, 22, 24, 27,
90 and 101 as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 303(r), and 309.
2. Section 1.949 is revised to read as follows:
Sec. 1.949 Application for renewal of authorization.
(a) Filing requirements. Applications for renewal of authorizations
in the Wireless Radio Services must be filed no later than the
expiration date of the authorization, and no sooner than 90 days prior
to the expiration date. Renewal applications must be filed on the same
form as applications for initial authorization in the same service,
i.e., FCC Form 601 or 605.
(b) Common expiration date. Licensees with multiple authorizations
in the same service may request a common date on which such
authorizations expire for renewal purposes. License terms may be
shortened by up to one year but will not be extended.
(c) Renewal showing. An applicant for renewal of a geographic-area
authorization in the following services regulated under this chapter
must make a Renewal Showing, independent of its performance
requirements, as a condition of renewal: 1.4 GHz Service (part 27,
subpart I); 1.6 GHz Service (part 27, subpart J); 24 GHz Service (part
101, subpart G); 39 GHz Service (part 101, subpart B); 218-219 MHz
Service (part 95, subpart F); 220-222 MHz Service (part 90, subpart T);
700 MHz Commercial Services (part 27, subpart F); 700 MHz Guard Band
Service (part 27, subpart G); 800 MHz Specialized Mobile Radio Service
(part 90, subpart S); 900 MHz Specialized Mobile Radio Service (part
90, subpart S); Advanced Wireless Service (part 27, subpart L); Air-
Ground Radiotelephone Service (Commercial Aviation) (part 22, subpart
G); Broadband Personal Communications Service (part 24, subpart E);
Cellular Radiotelephone Service (part 22, subpart H); Dedicated Short
Range Communications Service
[[Page 38972]]
(part 90, subpart M); Local Multipoint Distribution Service (part 101,
subpart L); Multichannel Video Distribution and Data Service (part 101,
subpart P); Multilateration Location and Monitoring Service (part 90,
subpart M); Multiple Address Systems (EAs) (part 101, subpart O);
Narrowband Personal Communications Service (part 24, subpart D); Paging
and Radiotelephone Service (part 22, subpart E; part 90, subpart P);
Public Coast Stations, including Automated Maritime Telecommunications
Systems (part 80, subpart J); and Wireless Communications Service (part
27, subpart D). For the Broadband Radio Service and Educational
Broadband Service, this requirement shall not apply to any license that
expires on or before May 1, 2011. The showing must include a detailed
description of the applicant's provision of service during the entire
license period and address:
(1) The level and quality of service provided by the applicant
(e.g., the population served, the area served, the number of
subscribers, the services offered);
(2) The date service commenced, whether service was ever
interrupted, and the duration of any interruption or outage;
(3) The extent to which service is provided to rural areas;
(4) The extent to which service is provided to qualifying tribal
land as defined in Sec. 1.2110(e)(3)(i); and
(5) Any other factors associated with the level of service to the
public.
(d) Service certification. An applicant for renewal of a site-by-
site authorization in the following services regulated under this
chapter must make a Service Certification with its application: 220-222
MHz Service (site-based) (part 90, subpart T); 800/900 MHz (SMR and
Business and Industrial Land Transportation Pool) (part 90, subpart S);
Air-Ground Radiotelephone Service (General Aviation) (part 22, subpart
G); Broadcast Auxiliary Service (part 74, subpart F); Common Carrier
Fixed Point-to-Point, Microwave Service (part 101, subpart I); Digital
Electronic Message Service (part 101, subpart G); Industrial/Business
Radio Pool (part 90, subpart C); Local Television Transmission Service
(part 101, subpart J); Multiple Address Systems (site-based), excluding
systems licensed to public safety entities (part 101, subpart O); Non-
Multilateration Location and Monitoring Service (part 90, subpart M);
Offshore Radiotelephone Service (part 22, subpart I); Paging and
Radiotelephone Service (site-based) (part 22, subpart E); Private
Carrier Paging (part 90, subpart P); Private Operational Fixed Point-
to-Point Microwave Service, excluding licenses held by public safety
entities (part 101, subpart H); and Rural Radiotelephone Service
(including Basic Exchange Telephone Radio Service) (part 22, subpart
F). The Service Certification must certify that the applicant is
continuing to operate consistent with its most recently filed
construction notification (NT) or most recent authorization, when no NT
is required to be filed under the Commission's rules.
(e) Regulatory compliance demonstration. An applicant for renewal
of an authorization in the Wireless Radio Services identified in
paragraphs (c) and (d) of this section must make a Regulatory
Compliance Demonstration as a condition of renewal. A Regulatory
Compliance Demonstration must include:
(1) A copy of each FCC order and letter ruling, which may or may
not have been assigned a delegated authority number, finding a
violation of the Communications Act or any FCC rule or policy by the
applicant, an entity that owns or controls the applicant, an entity
that is owned or controlled by the applicant, an entity that is under
common control with the applicant, or an affiliate of the applicant
(whether or not such an order or letter ruling relates specifically to
the license for which renewal is sought); and
(2) A list of any pending petitions to deny any application filed
by the applicant, an entity that owns or controls the applicant, an
entity that is owned or controlled by the applicant, an entity that is
under common control with the applicant, or an affiliate of the
applicant (whether or not the petition to deny relates specifically to
the license for which renewal is sought).
(f) Regulatory compliance certification. An applicant for renewal
of an authorization in the Wireless Radio Services identified in
paragraphs (c) and (d) of this section may, instead of making a
Regulatory Compliance Demonstration as part of the renewal application,
make a Regulatory Compliance Certification certifying the absence of
any findings under paragraph (e)(1) of this section, and any pending
petitions to deny under paragraph (e)(2) of this section.
(g) For the purposes of paragraphs (e)(1) and (e)(2) of this
section, the term affiliate means affiliate as defined in Sec.
1.2110(c)(5).
(h) If the Commission, or the Wireless Telecommunications Bureau
acting under delegated authority, finds that a licensee's Renewal
Showing under paragraph (c) of this section, its Service Certification
under paragraph (d) of this section, its Regulatory Compliance
Demonstration under paragraph (e) of this section, or its Regulatory
Compliance Certification under paragraph (f) of this section is
insufficient, its renewal application will be denied, and its licensed
spectrum will return automatically to the Commission for reassignment
(by auction or other mechanism). In the case of certain services
licensed site-by-site, the spectrum will revert automatically to the
holder of the related overlay geographic-area license.
3. Add Sec. 1.950 to subpart F to read as follows:
Sec. 1.950 Geographic partitioning and spectrum disaggregation.
(a) Definitions. The terms ``County and County Equivalent,''
``Geographic Partitioning,'' and ``Spectrum Disaggregation'' as used in
this section are defined as follows:
(1) County and county equivalent. The terms county and county
equivalent as used in this part are defined by Federal Information
Processing Standards (FIPS) 6-4, which provides the names and codes
that represent the counties and other entities treated as equivalent
legal and/or statistical subdivisions of the 50 States, the District of
Columbia, and the possessions and freely associated areas of the United
States. Counties are considered to be the ``first-order subdivisions''
of each State and statistically equivalent entity, regardless of their
local designations (county, parish, borough, etc.). Thus, the following
entities are considered to be equivalent to counties for legal and/or
statistical purposes: The parishes of Louisiana; the boroughs and
census areas of Alaska; the District of Columbia; the independent
cities of Maryland, Missouri, Nevada, and Virginia; that part of
Yellowstone National Park in Montana; and various entities in the
possessions and associated areas. The FIPS codes and FIPS code
documentation are available online at http://www.itl.nist.gov/fipspubs/index.htm.
(2) Geographic partitioning. Geographic partitioning is the
assignment of a geographic portion of a licensee's license area.
(3) Spectrum disaggregation. Spectrum disaggregation is the
assignment of portions or blocks of a licensee's spectrum.
(b) Eligibility. Licensees in the wireless radio services regulated
under this chapter are eligible for Geographic Partitioning and
Spectrum Disaggregation: 1.4 GHz Service (part 27, subpart I); 1.6 GHz
Service (part 27,
[[Page 38973]]
subpart J); 24 GHz Service (part 101, subpart G); 39 GHz Service (part
101, subpart B); 218-219 MHz Service (part 95, subpart F); 220-222 MHz
Service (part 90, subpart T); 700 MHz Commercial Services (part 27,
subpart F); 700 MHz Guard Band Service (part 27, subpart G); 800 MHz
Specialized Mobile Radio Service (part 90, subpart S); 900 MHz
Specialized Mobile Radio Service (part 90, subpart S); Advanced
Wireless Services (part 27, subpart L); Air-Ground Radiotelephone
Service (Commercial Aviation) (part 22, subpart G); Broadband Personal
Communications Service (part 24, subpart E); Broadband Radio Service
and Educational Broadband Service (part 27, subpart M); Cellular
Radiotelephone Service (part 22, subpart H); Local Multipoint
Distribution Service (part 101, subpart L); Multichannel Video
Distribution and Data Service (part 101, subpart P); Multilateration
Location and Monitoring Service (part 90, subpart M); Multiple Address
Systems (part 101, subpart O); Narrowband Personal Communications
Service (part 24, subpart D); Paging and Radiotelephone Service (part
22, subpart E; part 90, subpart P); Public Coast Stations, including
Automated Maritime Telecommunications Systems (part 80, subpart J); and
Wireless Communications Service (part 27, subpart D).
(1) Geographic partitioning. An eligible licensee may partition any
geographic portion of its license area, at any time following grant of
its license, subject to the following exceptions:
(i) 220 MHz Service licensees must comply with Sec. 90.1019 of
this chapter.
(ii) Cellular Radiotelephone Service licensees must comply with
Sec. 22.948 of this chapter.
(2) Spectrum disaggregation. An eligible licensee may disaggregate
spectrum in any amount, at any time following grant of its license,
subject to the following exceptions:
(i) 220 MHz Service licensees must comply with Sec. 90.1019 of
this chapter.
(ii) Cellular Radiotelephone Service licensees must comply with
Sec. 22.948 of this chapter.
(iii) VHF Public Coast (156-162 MHz) spectrum may only be
disaggregated in frequency pairs, except that the ship and coast
transmit frequencies comprising Channel 87 (see Sec. 80.371(c) of this
chapter) may be disaggregated separately.
(iv) Disaggregation is not permitted in the Multichannel Video &
Distribution and Data Service 12.2-12.7 GHz band.
(c) Filing requirements. Parties seeking approval for geographic
partitioning, spectrum disaggregation, or a combination of both must
apply for a partial assignment of authorization by filing FCC Form 603
pursuant to Sec. 1.948. Each request for geographic partitioning must
include an attachment defining the perimeter of the partitioned area by
geographic coordinates to the nearest second of latitude and longitude,
based upon the 1983 North American Datum (NAD83). Alternatively,
applicants may specify an FCC-recognized service area (e.g., Basic
Trading Area, Economic Area, Major Trading Area, Metropolitan Service
Area, or Rural Service Area), county, or county equivalent, in which
case, applicants need only list the specific FCC-recognized service
area, county, or county equivalent names comprising the partitioned
area.
(d) Relocation of incumbent licensees. Applicants for geographic
partitioning, spectrum disaggregation, or a combination of both must,
if applicable, include a certification with their partial assignment of
authorization application stating which party will meet any incumbent
relocation requirements.
(e) License term. The license term for a partitioned license area
or disaggregated spectrum license is the remainder of the original
licensee's license term.
(f) Frequency coordination. Any existing frequency coordination
agreements convey with the partial assignment of authorization for
geographic partitioning, spectrum disaggregation, or a combination of
both.
(g) Performance requirements. Each party to a geographic
partitioning, spectrum disaggregation, or a combination of both must
individually meet any service-specific performance requirements (i.e.,
construction and operation requirements). If a licensee fails to meet
any service-specific performance requirements on or before the required
date, its authorization will terminate automatically on that date
without further Commission action pursuant to Sec. 1.946.
(h) Unjust enrichment. Licensees making installment payments or
that received a bidding credit, that partition their licenses or
disaggregate their spectrum to entities that do not meet the
eligibility standards for installment payments or bidding credits, are
subject to the unjust enrichment requirements of Sec. 1.2111.
4. Add Sec. 1.953 to subpart F to read as follows:
Sec. 1.953 Discontinuance of service.
(a) Termination of authorization. A licensee's authorization will
automatically terminate, without specific Commission action, if it
permanently discontinues service.
(b) 180-day rule. Permanent discontinuance of service is defined as
180 consecutive days during which a licensee does not operate or, in
the case of commercial mobile radio service providers, does not provide
service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier. This 180-day rule
applies to: All radio services regulated under parts 22, 24, 27 (except
the Broadband Radio Service and Educational Broadband Service), and 80
of this chapter; trunked Specialized Mobile Radio Service (part 90,
subpart S of this chapter); the 218-219 MHz Service (part 95, subpart S
of this chapter), and the 220-222 MHz Service (part 90, subpart T of
this chapter).
(c) 365-day rule. Permanent discontinuance of service is defined as
365 consecutive days during which a licensee does not operate or, in
the case of commercial mobile radio service providers, does not provide
service to at least one subscriber that is not affiliated with,
controlled by, or related to the providing carrier. This 365-day rule
applies to all radio services regulated under parts 90 (except trunked
Specialized Mobile Radio Service and the 220-222 MHz Service) and 101
of this chapter.
(d) Channel keepers. Operation of channel keepers (devices that
transmit test signals, tones, color bars, or some combination of these,
for example) does not constitute operation for the purposes of this
section.
(e) Filing requirements. A licensee that permanently discontinues
service as defined in this section must notify the Commission of the
discontinuance within 10 days by filing FCC Form 601 or 605 requesting
license cancellation. An authorization will automatically terminate,
without specific Commission action, if service is permanently
discontinued as defined in this section, even if a licensee fails to
file the required form requesting license cancellation.
(f) Extension request. A licensee may file a request for a longer
discontinuance period for good cause. An extension request must be
filed at least 30 days before the end of the applicable 180-day or 365-
day- discontinuance period. The filing of an extension request will
automatically extend the discontinuance period a minimum of the latter
of an additional 30 days or the date upon which the Wireless
Telecommunications Bureau acts on the request.
[[Page 38974]]
PART 22--PUBLIC MOBILE SERVICES
5. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 222, 303, 309 and 332.
Sec. Sec. 22.935 and 22.936 [Removed]
6. Remove Sec. Sec. 22.935 and 22.936.
Sec. Sec. 22.939 and 22.940 [Removed]
7. Remove Sec. Sec. 22.939 and 22.940.
Sec. 22.943 [Removed]
8. Remove Sec. 22.943.
PART 24--PERSONAL COMMUNICATIONS SERVICES
9. The authority citation for part 24 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 309 and 332.
Sec. 24.16 [Removed]
10. Remove Sec. 24.16.
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
11. 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.
12. Section 27.14 is amended by revising the section heading and by
removing and reserving paragraphs (b) through (f) to read as follows:
Sec. 27.14 Construction requirements.
* * * * *
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
13. The authority citation for part 90 continues to read as
follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r) and 332(c)(7).
14. Section 90.165 is amended as follows:
a. Remove paragraphs (b)(1), (c)(3)(i), and (c)(4)(i).
b. Redesignate paragraphs (b)(2) through (b)(4) as paragraphs
(b)(1) through (b)(3).
c. Redesignate paragraphs (c)(3)(ii) through (c)(3)(iii) as
paragraphs (c)(3)(i) through (c)(3)(ii).
d. Redesignate paragraphs (c)(4)(ii) through (c)(4)(iv) as
paragraphs (c)(4)(i) through (c)(4)(iii).
e. Revise newly redesignated paragraph (c)(3)(ii) as follows:
Sec. 90.165 Procedures for mutually exclusive applications.
* * * * *
(c) * * *
(3) * * *
(ii) If any mutually exclusive application filed on the earliest
filing date is an application for modification, a same-day filing group
is used.
* * * * *
Sec. 90.743 [Removed]
15. Remove Sec. 90.743.
PART 101--FIXED MICROWAVE SERVICES
16. The authority citation for part 101 continues to read as
follows:
Authority: 47 U.S.C. 154, 303.
Sec. 101.1327 [Removed]
17. Remove Sec. 101.1327.
18. Revise Sec. 101.1413 to read as follows:
Sec. 101.1413 License term.
The MVDDS license term is ten years, beginning on the date of the
initial authorization grant.
[FR Doc. 2010-16351 Filed 7-6-10; 8:45 am]
BILLING CODE 6712-01-P