[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]


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

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.

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

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