[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Proposed Rules]
[Pages 49871-49879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19824]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2 and 25

[ET Docket No. 10-142; FCC 10-126]


Fixed and Mobile Services in the Mobile Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes to take a number of actions to further 
the provision of terrestrial broadband services in the MSS bands. In 
the 2 GHz MSS band, the Commission proposes to add co-primary Fixed and 
Mobile allocations to the existing Mobile-Satellite allocation. This 
will lay the groundwork for providing additional flexibility in use of 
the 2 GHz spectrum in the future. The Commission also proposes to apply 
the terrestrial secondary market spectrum leasing rules and procedures 
to transactions involving terrestrial use of the MSS spectrum in the 2 
GHz, Big LEO, and L-bands in order to create greater certainty and 
regulatory parity with bands licensed for terrestrial broadband 
service. The Commission also asks, in a Notice of Inquiry, about 
approaches for creating opportunities for full use of the 2 GHz band 
for stand-alone terrestrial uses. The Commission requests comment on 
ways to promote innovation and investment throughout the MSS bands 
while also ensuring market-wide mobile satellite capability to serve 
important needs like disaster recovery and rural access.

DATES: Comments must be filed on or before September 15, 2010, and 
reply comments must be filed on or before September 30, 2010.

ADDRESSES: You may submit comments, identified by ET Docket No. 10-142, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [Optional: Include the E-mail address only if you 
plan to accept comments from the general public]. Include the docket 
number(s) in the subject line of the message.
     Mail: [Optional: Include the mailing address for paper, 
disk or CD-ROM submissions needed/requested by your Bureau or Office. 
Do not include the Office of the Secretary's mailing address here.]
     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-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION of this document.

FOR FURTHER INFORMATION CONTACT: Nicholas Oros, Office of Engineering 
and Technology, (202) 418-0636, e-mail: [email protected], TTY 
(202) 418-2989.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making and Notice of Inquiry, ET Docket No. 10-142, 
FCC 10-126, adopted July 15, 2010 and released July 15, 2010. The full 
text of this document is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW., Washington, DC 20554. The complete text of this 
document also may be purchased from the Commission's copy contractor, 
Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, 
Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
     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.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. 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.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

Summary of Notice of Proposed Rulemaking

    1. The Commission takes steps to make additional spectrum available 
for mobile broadband services, while ensuring that America has robust 
mobile satellite service capability to meet public safety, rural 
connectivity, federal government, and other important needs. In this 
Notice of Proposed Rulemaking the Commission proposes to take a number 
of actions to further our goal of enabling the provision of terrestrial 
broadband services in the MSS bands. In the 2 GHz MSS band, it proposes 
to add co-primary Fixed and Mobile allocations to the existing Mobile-
Satellite allocation. While this action in itself does not change the 
status of the existing MSS licensees and the Commission's service rules 
for MSS and ATC networks, it lays the groundwork for providing 
additional flexibility in use of the 2 GHz spectrum in the future. In 
keeping with this proposed flexible allocation for the 2 GHz MSS band, 
if an MSS license is cancelled for any reason the Commission proposes 
not to assign any additional spectrum for MSS in this band to either 
the existing MSS licensees or to a new MSS entrant. To

[[Page 49872]]

further the goal of increasing the provision of terrestrial broadband 
services in the MSS bands, the Commission also proposes to apply the 
Commission's terrestrial secondary market spectrum leasing rules and 
procedures to transactions involving terrestrial use of MSS spectrum in 
the 2 GHz (2000-2020 MHz and 2180-2200 MHz), Big LEO (1610-1626.5 MHz 
and 2483.5-2500 MHz), and L-bands (1525-1559 MHz and 1626.5-1660.5 
MHz).

2 GHZ MSS Band Allocation

    2. The Commission tentatively concludes to add primary Fixed and 
Mobile allocations to the 2000-2020 MHz and 2180-2200 MHz bands. This 
allocation will be co-primary with the existing Mobile-Satellite 
allocation for these bands. Currently, the 1980-2010 MHz band is 
allocated to Fixed, Mobile, and Mobile-Satellite (Earth-to-space) on a 
primary basis while the 2170-2200 MHz band is allocated to the Fixed, 
Mobile, and Mobile-Satellite (space-to-Earth) on a primary basis in the 
international table for all regions. The 2010-2025 MHz band is 
allocated to Fixed, Mobile, and Mobile-Satellite (Earth-to-space) on a 
primary basis in Region 2 (North and South America) and to Fixed and 
Mobile on a primary basis in other regions.
    3. A footnote to the Table of Frequency Allocations (Allocation 
Table) permits MSS operators to operate ATC in conjunction with their 
MSS networks despite the fact that these bands are not presently 
allocated for Fixed and Mobile uses. Because the Commission is 
proposing that a Fixed and Mobile allocation be added to these bands, 
this footnote would no longer be necessary for the 2 GHz band. The 
Commission proposes to modify this footnote to remove the 2000-2020 MHz 
and 2180-2200 MHz bands. The current footnote is still necessary for 
the Big LEO and L-band MSS because these bands have no Fixed and Mobile 
allocations in the International Table of Frequency Allocations.
    4. Two footnotes in the Allocation Table, NG156 and NG168, permit 
certain BAS and FS licensees to continue to operate on a primary basis 
in the 2 GHz MSS band until December 9, 2013 (the sunset date for the 
band). After the sunset date, any remaining licensees will operate on a 
secondary basis. In proposing to add primary Fixed and Mobile 
allocations to these bands, the Commission is not proposing to change 
this relationship. The incumbent BAS and FS licensees will continue to 
operate with primary status until they are relocated or until the 
sunset date. However, the Commission tentatively has concluded to amend 
these two footnotes to clarify that ATC operations by MSS will continue 
to be permitted on a primary basis after the sunset date but that 
existing Fixed and Mobile operations (i.e., the incumbent BAS and FS 
licensees) will become secondary on the sunset date.
    5. The proposal to add Fixed and Mobile allocations is the first 
step to providing additional flexibility to the 2 GHz MSS bands. The 
existing service rules continue to permit MSS and ATC operation and are 
not altered by the re-introduction of a Fixed and Mobile allocation to 
the band. The existing MSS licensees, both of which have launched 
satellites, will continue to be able to operate under the terms of 
their licenses and must continue to comply with all of the Commission's 
existing ATC rules.
    6. The Commission also believes that in the event that one or both 
of the 2 GHz MSS licenses were to be returned or cancelled for any 
reason, the returned spectrum could be used for terrestrial mobile 
broadband deployment. It last addressed the issue of ``returned 
spectrum'' in 2005, and concluded at that time that assigning each 
systems' 10 megahertz of spectrum in each direction of transmission (20 
megahertz per system) would serve the public interest. In reaching that 
conclusion, the Commission considered alternative proposals that some, 
or all, of the returned spectrum be reallocated to other services, or 
made available for use by other MSS systems.
    7. The Commission proposes that, in the event a 2 GHz MSS license 
is returned or cancelled, the spectrum covered by the license should 
not be assigned to the remaining licensee, or made available for a new 
MSS licensee. Assigning the returned spectrum under the existing 
satellite licensing rules would potentially limit options for flexible 
use and promotion of fixed/mobile deployment. Moreover, deployment of 
fixed and mobile services under the ATC framework may be substantially 
delayed by requirements for prior satellite deployment. Accordingly, 
the returned spectrum would not be declared available for further 
licensing under the satellite licensing rules. As explained in the 
accompanying Notice of Inquiry, the Commission is exploring ways to 
promote the development of terrestrial mobile services. It is in the 
public interest to retain flexibility on how best to assign the 
spectrum, should it become available, until we make final decisions in 
this proceeding. The Commission seeks comment on all of these 
proposals.

Secondary Market Rules and Procedures for Terrestrial Services in MSS 
Bands

    8. The Commission seeks to modify its policies and procedures with 
regard to spectrum leasing arrangements between MSS licensees and third 
parties for the provision of terrestrial services using MSS spectrum. 
Specifically, the Commission proposes to subject spectrum leasing 
arrangements between an MSS operator in the 2 GHz, Big LEO, and L-bands 
and a third party entity involving the use of MSS spectrum for the 
provision of terrestrial services to the Commission's general secondary 
market spectrum leasing policies and rules that currently apply to 
wireless terrestrial services. This proposal would apply to all 
terrestrial use of the MSS spectrum in the 2 GHz, Big LEO, and L-bands, 
which currently consists of ATC operations, but in the future may 
include other terrestrial operations in the 2 GHz MSS band. The 
proposal aims to provide greater regulatory predictability and parity, 
so that a common set of policies and rules applies for spectrum leasing 
arrangements involving the provision of terrestrial services, 
independent of the underlying allocation.
    9. The Commission has previously approved an MSS/ATC spectrum 
leasing arrangement between MSS licensee Globalstar and terrestrial 
provider Open Range. SkyTerra/Harbinger also has proposed various 
arrangements that involve the use of MSS spectrum in the provision of 
terrestrial services. As Globalstar, SkyTerra/Harbinger, and other MSS 
providers realize their plans to offer high-speed broadband services to 
consumers using terrestrial networks under their ATC authority, the 
services they offer have the potential to expand the services offered 
in the overall market of mobile terrestrial wireless services and 
enhance competition in this larger mobile marketplace.
    10. Given these developments in the use of MSS spectrum for the 
provision of terrestrial services through various secondary market 
arrangements, the Commission now proposes to subject MSS/ATC spectrum 
leasing arrangements to the same general policies and rules--including 
notification and/or approval procedures--that the Commission currently 
applies to spectrum leasing arrangements involving Wireless Radio 
Services. The Commission expects that technological advancements will 
enable MSS licensees and their spectrum lessees to use their ATC 
authority to provide mobile broadband services

[[Page 49873]]

similar to those provided by terrestrial mobile providers and enhance 
competition in the mobile broadband sector. As the kinds of terrestrial 
services that will be offered using MSS spectrum converges with those 
services offered by terrestrial mobile providers, the Commission 
tentatively concludes that spectrum leasing arrangements associated 
with both should be treated consistently. Such action would create 
greater predictability, consistency, and transparency between all 
spectrum leasing arrangements involving terrestrially-based mobile 
service offerings. Further, this would ensure that the Commission would 
have the opportunity to evaluate, in a streamlined process, the various 
public interest considerations that might arise with respect to MSS/ATC 
spectrum leasing arrangements. We seek comment on these proposals.
    11. The Commission starts with the premise that its general 
spectrum leasing framework currently applicable to all terrestrial 
Wireless Radio Services spectrum leasing arrangements should apply to 
MSS/ATC spectrum leasing arrangements. Accordingly, it would require 
that leasing parties submit specified information and certifications 
(including information about the parties, the amount and geographic 
location of the spectrum involved, and other overlapping terrestrial-
use spectrum holdings of the parties) to the Commission in advance of 
any operations that would be permitted pursuant to the proposed 
transaction. As with proposed spectrum leasing arrangements involving 
Wireless Radio Services, to the extent a proposed arrangement does not 
raise potential public interest concerns, the transaction would be 
subject to immediate processing or approval, whereas to the extent 
potential public interest concerns were raised (e.g., potential 
competitive harms) the transaction would be subject to streamlined 
procedures as the Commission evaluated whether the public interest 
would be served by the proposed transaction.
    12. The Commission also seeks comment on whether only a subset of 
the spectrum leasing policies and rules applicable to Wireless Radio 
Services should be applied to terrestrial use of MSS spectrum relating 
to ATC services, and if so, which ones. For instance, considering that 
the ATC rules require use of an integrated MSS/ATC network, should MSS 
licensees and potential lessees of MSS/ATC spectrum only be permitted 
to enter into spectrum manager leasing arrangements, or should they 
also have the option of entering into de facto transfer leasing 
arrangements, as permitted in the Wireless Radio Services? As the 
Commission evaluates whether a particular MSS/ATC spectrum arrangement 
raises potential competitive concerns, what considerations should it 
take into account, and should those differ in any respect from its 
current considerations of potential competitive harms under the 
existing spectrum leasing policies applicable to terrestrial mobile 
services? The Commission proposes to require that parties seeking to 
enter into MSS/ATC spectrum leasing arrangements file the requisite 
information using the form used for spectrum leasing arrangements 
involving the Wireless Radio Services. The Commission also seeks 
comment on how the adoption of industry-wide MSS/ATC spectrum leasing 
rules should affect existing MSS leasing arrangements. What other 
concerns or issues do commenters think should be addressed? The 
Commission invites commenting parties to address any aspect of the 
approach it is proposing.
    13. Finally, the Commission seeks comment on whether its secondary 
market policies and rules for terrestrial wireless services need to be 
modified to accommodate spectrum leasing arrangements or other 
secondary market transactions involving non-ATC terrestrial use of 
spectrum allocated or co-allocated to MSS, such as the proposals 
discussed in the NOI.

Summary of Notice of Inquiry

    14. The Notice of Inquiry launches a broader inquiry into how the 
Commission can best increase the value, utilization, innovation and 
investment in the spectrum for terrestrial services throughout the 2 
GHz, Big LEO and L-bands, while ensuring that the United States market, 
as a whole, continues to have robust mobile satellite service 
capabilities. As an initial matter, the Commission focuses on 
flexibility for deploying new mobile broadband services under the 
proposed co-primary Fixed and Mobile allocations in the 2 GHz band. It 
is also interested in additional options for increasing terrestrial use 
of the Big LEO and L-bands.

Utilizing the 2 GHz Band for Terrestrial Services

    15. The current licensees, New DBSD Satellite Services G.P. 
(formerly New ICO Satellite Services G.P.) (DBSD) and TerreStar 
Networks Inc. (TerreStar), are authorized to use the entire allocated 
40 megahertz for MSS and related ATC operations. The Commission seeks 
comment on how best to encourage the growth of new mobile broadband 
services in the 2 GHz Band under the proposed co-primary Fixed and 
Mobile allocations in a way that will attract investment.
    16. The National Broadband Plan recommends that Congress consider 
expressly expanding the FCC's authority to enable it to conduct 
incentive auctions in which incumbent licensees may relinquish rights 
in spectrum assignments to other parties or to the FCC in exchange for 
a portion of the proceeds realized by the auction of new spectrum 
licenses. That is, existing licensees could, on a voluntary basis, 
relinquish bandwidth in exchange for a portion of the proceeds from an 
auction for the new licenses authorizing terrestrial only services. 
Would voluntary incentive auctions, if Congress were to grant such 
authority to the FCC, be an appropriate mechanism for providing an 
option for incumbent 2 GHz MSS licensees to vacate the band in favor of 
mobile broadband providers operating on new licenses?
    17. Alternatively, are there other approaches that could create 
licenses that would attract the substantial investment necessary to 
launch new mobile broadband services in the 2 GHz band and that are 
within the Commission's existing legal authority? Should existing 2 GHz 
MSS licensees be given the option to return some of their spectrum 
(which we could then auction to new terrestrial licensees) while 
concurrently modifying the MSS licensees' authorizations to allow them 
to operate terrestrial networks under the proposed Fixed and Mobile 
allocations instead of under the current ATC service rules? What is an 
appropriate metric for assessing how much bandwidth should be returned 
in exchange for modifying the existing MSS licenses? What, if any, 
additional conditions--such as build-out requirements for terrestrial 
networks--are appropriate or necessary to serve the public interest?
    18. As noted in the National Broadband Plan, the 2 GHz MSS band is 
adjacent to the Advanced Wireless Services-2 paired ``J'' block at 
2020-2025 MHz and 2175-2180 MHz. In any of the scenarios discussed, 
would the opportunity to integrate the J Block and 2 GHz MSS spectrum 
help attract new investment and utilization of new mobile broadband 
networks in the 2 GHz band? If so, the Commission seeks comment on how 
the Commission could and whether it should take into account such 
potential as it decides how to increase utilization of the 2 GHz MSS 
spectrum for terrestrial use.

[[Page 49874]]

Increasing Value, Utilization, Innovation and Investment in all MSS 
Bands

    19. As noted, the Commission already has taken additional steps to 
promote the development of ATC in the Big LEO and L-bands. Are there 
any other actions that the Commission could take that would increase 
terrestrial use of the MSS bands? Are there any such actions that would 
specifically apply to the Big LEO or L-bands? Are there any value or 
investment promoting actions that might apply to MSS spectrum 
generally? Are there various incentives that the Commission could apply 
to help ensure that the public receives the maximum benefits from the 
use of the spectrum?
    20. As part of this inquiry, the Commission has also considered 
deployment of satellite and terrestrial services in the MSS bands, both 
within the U.S. and internationally. Do parties anticipate or plan to 
offer satellite and terrestrial services independent of each other or 
as part of combined, integrated network offerings? What is happening in 
other countries with respect to investment in the 2 GHz, Big LEO and L-
bands?
    21. The Commission notes the importance of maintaining MSS to 
provide services, for example, to public safety and Federal government 
agencies, to rural areas, and during natural disasters. How should the 
Commission assess the current and future spectrum needs for MSS so that 
it can assure those needs continue to be met? How many users depend on 
such services today? Where are they located? Are there, for example, 
certain remote or rural areas that appear to be more suitable than 
other areas for the use of such services? What are the characteristics 
of those areas (e.g., population size, income of residents, topography) 
that make them more suitable? Which particular services do they rely 
upon most? Are these services specific to a particular provider or band 
or can they be substituted by other MSS or FSS providers? To what 
extent can such services coexist with terrestrial uses in areas that do 
not rely as heavily upon MSS?
    22. How can the Commission ensure that the United States continues 
to have market-wide MSS capabilities, even as we take targeted actions 
to create opportunities for terrestrial use in specific MSS bands? Is 
it necessary to continue to support the capability of providing MSS in 
all three bands, or can the Commission meet future needs with less 
allocated spectrum in some or all of the bands? If so, which band(s) 
are best suited for MSS?

Paperwork Reduction Act

    23. This document contains proposed 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), we seek specific comment on how we might further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.

Ordering Clauses

    24. Pursuant to sections 4(i), 301, 303(c), 303(f), 303(r), 303(y), 
and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 301, 303(c), 303(f), 303(r), 303(y), and 310, this Notice of 
Proposed Rulemaking and Notice of Inquiry is adopted.
    25. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Notice of 
Proposed Rulemaking, and Notice of Inquiry, including the Initial 
Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of 
the Small Business Administration.

Initial Regulatory Flexibility Analysis

    26. As required by the Regulatory Flexibility Act (RFA),\1\ the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this Notice of Proposed 
Rulemaking (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 provided on the first page of this NPRM. 
The Commission will send a copy of this NPRM, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA).\2\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ See 5 U.S.C. 603(a).
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A. Need for, and Objectives of, the Proposed Rules.

    27. Mobile broadband is emerging as one of America's most dynamic 
innovation and economic platforms. Yet tremendous demand growth will 
soon test the limits of spectrum availability. As observed in the 
National Broadband Plan, 90 megahertz of spectrum allocated to the 
Mobile Satellite Service (MSS)--in the 2 GHz band, Big LEO band, and L-
band--are potentially available for terrestrial mobile broadband 
use.\3\ In the Notice of Proposed Rulemaking (NPRM) the Commission 
seeks to remove regulatory barriers to terrestrial use, and to promote 
additional investments in the MSS bands while retaining sufficient 
market-wide MSS capability.
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    \3\ Connecting America: The National Broadband Plan, 
Recommendation 5.8.4, p.87 (2010) (National Broadband Plan).
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    28. The NPRM makes two proposals. First, the Commission proposes to 
add co-primary Fixed and Mobile allocations to the Table of Frequency 
Allocations for the 2 GHz band,\4\ consistent with the International 
Table of Allocations. Under this proposed allocation, Fixed and Mobile 
services would have equal status to Mobile Satellite Services. This 
allocation modification is a precondition for more flexible licensing 
of terrestrial services within the band and lays the groundwork for 
providing additional flexibility in use of the 2 GHz spectrum in the 
future. The NPRM would not change the status of the existing MSS 
licensees nor grant authority for terrestrial operations in the band 
beyond what are currently permitted under the Ancillary Terrestrial 
Component (ATC) rules.\5\
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    \4\ 47 CFR 2.106.
    \5\ Any terrestrial use of the 2 GHz MSS bands must comply with 
the Commission's service and licensing rules for the band. The NPRM 
does not propose to alter these rules.
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    29. In keeping with this proposed flexible allocation for the 2 GHz 
MSS band, if an MSS license is cancelled for any reason, we also 
propose not to assign any additional spectrum for MSS use in this band 
to either of the existing MSS licensees or to a new MSS entrant. 
Previously, the Commission has not expressed any preference on how it 
would treat returned 2 GHz MSS spectrum. Assigning the returned 
spectrum under the existing MSS licensing rules would potentially limit 
options for flexible use and promotion of future fixed and mobile 
deployment. The Notice of Inquiry (NOI) that accompanies this NPRM 
explores ways to promote the development of terrestrial mobile services 
in the 2 GHz MSS band. It is in the public interest to retain 
flexibility on how best to assign the spectrum, should it become 
available, until we make final decisions in this proceeding.
    30. Second, we propose to apply the Commission's secondary markets

[[Page 49875]]

policies and rules applicable to terrestrial services to all 
transactions involving the use of MSS bands for terrestrial services in 
order to create greater predictability and regulatory parity with bands 
licensed for terrestrial mobile broadband service. The secondary 
markets policies and rules provide a means by which terrestrially-based 
Wireless Radio Service licensees holding ``exclusive use'' spectrum 
rights can lease some or all of the spectrum usage rights associated 
with their licenses to third parties.\6\ The rules include immediate 
approval procedures for categories of terrestrial spectrum leasing 
arrangements that do not raise public interest concerns (such as 
concerns relating to foreign ownership or competition). Currently, the 
secondary markets policies and rules do not apply to satellite spectrum 
such as the MSS bands. Extending these rules to terrestrial use of the 
MSS band will foster regulatory parity by allowing leases involving use 
of the MSS bands for terrestrial services to use the same leasing rules 
as are used in other bands, including the immediate approval procedures 
for certain categories of leasing arrangements. It will create greater 
predictability by allowing licensees to take advantage of the 
established secondary markets leasing procedures. No protest or 
grievances have been received from small entities alleging that their 
interest have been compromised under the secondary markets rules as 
they have been applied in the past to Wireless Radio Services 
licensees.
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    \6\ Rules and procedures for spectrum leasing arrangements are 
set forth in Part 1, Subpart X. 47 CFR 1.9001 et seq.
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B. Legal Basis

    31. The proposed action is authorized under sections 4(i), 301, 
303(c), 303(f), 303(r), 303(y), and 310 of the Communications Act of 
1934, as amended, 47 U.S.C. 154(i), 301, 303(c), 303(f), 303(r), 
303(y), and 310.

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

    32. 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.\7\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \8\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\9\ 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.\10\
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    \7\ 5 U.S.C. 603(b)(3).
    \8\ 5 U.S.C. 601(6).
    \9\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the 
Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \10\ Small Business Act, 15 U.S.C. 632 (1996).
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    33. Mobile Satellite Service Carriers. Neither the Commission nor 
the U.S. Small Business Administration has developed a small business 
size standard specifically for mobile satellite service licensees. The 
appropriate size standard is therefore the SBA standard for Satellite 
Telecommunications, which provides that such entities are small if they 
have $15 million or less in annual revenues.\11\ Currently, the 
Commission's records show that there are 31 entities authorized to 
provide voice and data MSS in the United States. The Commission does 
not have sufficient information to determine which, if any, of these 
parties are small entities. The Commission notes that small businesses 
are not likely to have the financial ability to become MSS system 
operators because of high implementation costs, including construction 
of satellite space stations and rocket launch, associated with 
satellite systems and services. Nonetheless, it might be possible that 
some are small entities affected by this NPRM and therefore we include 
them in this section of the IFRA.
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    \11\ 13 CFR 121.201, North American Industry Classification 
System (``NAICS'') code 517410.
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    34. Satellite Telecommunications and All Other Telecommunications. 
The category of Satellite Telecommunications ``comprises establishments 
primarily engaged in providing telecommunications services to other 
establishments in the telecommunications and broadcasting industries by 
forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' \12\ For this 
category, Census Bureau data for 2002 show that there were a total of 
371 firms that operated for the entire year.\13\ Of this total, 307 
firms had annual receipts of under $10 million, and 26 firms had 
receipts of $10 million to $24,999,999.\14\ Consequently, we estimate 
that the majority of Satellite Telecommunications firms are small 
entities that might be affected by our action.
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    \12\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410 
Satellite Telecommunications,'' http://www.census.gov/naics/2007/def/ND517410.HTM (last visited Oct. 21, 2009).
    \13\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' tbl. 4, NAICS code 517410 (rel. Nov. 2005).
    \14\ Id. An additional 38 firms had annual receipts of $25 
million or more.
---------------------------------------------------------------------------

    35. The second category of All Other Telecommunications has a size 
standard of $25 million or less in annual receipts.\15\ The most 
current Census Bureau data in this context, however, are from the 
(last) economic census of 2002, and we will use those figures to gauge 
the prevalence of small businesses in these categories.\16\ This 
category comprises, inter alia, ``establishments primarily engaged in 
providing specialized telecommunications services, such as satellite 
tracking, communications telemetry, and radar station operation. This 
industry also includes establishments primarily engaged in providing 
satellite terminal stations and associated facilities connected with 
one or more terrestrial systems and capable of transmitting 
telecommunications to, and receiving telecommunications from, satellite 
systems.'' \17\ For this category, Census Bureau data for 2002 show 
that there were a total of 332 firms that operated for the entire 
year.\18\ Of this total, 303 firms had annual receipts of under $10 
million and 15 firms had annual receipts of $10 million to 
$24,999,999.\19\ Consequently, we estimate that the majority of All 
Other Telecommunications firms are small entities that might be 
affected by our action.
---------------------------------------------------------------------------

    \15\ 13 CFR 121.201, NAICS code 517919.
    \16\ 13 CFR 121.201, NAICS codes 517410 and 517910 (2002).
    \17\ U.S. Census Bureau, 2007 NAICS Definitions, ``517919 All 
Other Telecommunications,'' http://www.census.gov/naics/2007/def/ND517919.HTM#N517919 (last visited Oct. 21, 2009).
    \18\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' tbl. 4, NAICS code 517910 (issued Nov. 2005).
    \19\ Id. An additional 14 firms had annual receipts of $25 
million or more.
---------------------------------------------------------------------------

    36. Wireless Telecommunications Carriers (except satellite). The 
NPRM proposes that the Commission's secondary market policies and rules 
be applied to terrestrial service in the MSS bands. We can not predict 
who may in the future lease spectrum for terrestrial use in these 
bands. In general, any wireless telecommunications provider would be 
eligible to lease spectrum from the MSS licensees. Since 2007, the

[[Page 49876]]

Census Bureau has placed wireless firms within the new, broad, economic 
census category of Wireless Telecommunications Carriers (except 
satellite). 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, we 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, we estimate that 
the majority of wireless firms are small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    37. The NPRM proposes to apply the Commission's secondary market 
policies and rules applicable to terrestrial services to all 
transactions involving the use of MSS bands for terrestrial services. 
Leasing parties will be required to submit specified information and 
certifications (including information about the parties, the amount and 
geographic location of the spectrum involved, and other overlapping 
terrestrial-use spectrum holdings of the parties) to the Commission in 
advance of any operations that would be permitted pursuant to the 
proposed transaction.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    38. 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.\20\
---------------------------------------------------------------------------

    \20\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    39. The proposal to add Fixed and Mobile allocations to the 2 GHz 
MSS band is the first step toward providing additional flexibility to 
the band.\21\ The addition of Fixed and Mobile allocations in itself 
does not change the status of the existing MSS licensees or the 
Commission's service rules for MSS and ATC networks. Furthermore, this 
addition does not grant authority for terrestrial operations in the 
band beyond what is currently permitted under the ATC rules. The 
existing 2 GHz MSS operators, both of which have launched satellites, 
will continue to be able to operate under the terms of their licenses 
and must continue to comply with all of the Commission's existing ATC 
rules as was the case before the Fixed and Mobile allocations were 
added to the band. Consequently, this proposal will not have a 
significant economic impact on the 2 GHz MSS operators or any other 
entity, small or otherwise.
---------------------------------------------------------------------------

    \21\ This item does not propose to alter the primary MSS 
allocation or propose to relocate the incumbent MSS licensees under 
the Emerging Technologies relocation policies.
---------------------------------------------------------------------------

    40. The NPRM also proposes that if one or both of the 2 GHz MSS 
licenses were to be returned or cancelled for any reason, the returned 
spectrum could be used for terrestrial mobile broadband deployment. 
This proposal would not encourage or require the MSS operators to 
return their licenses and therefore will not result in a negative 
economic impact on any entity, small or otherwise. Furthermore, if an 
MSS license is returned or cancelled and the returned spectrum were to 
be used for terrestrial mobile broadband services, this could provide 
future opportunities for small entities to provide mobile broadband 
services--e.g. by obtaining licenses by standard FCC auction procedures 
or by obtaining leases for the returned spectrum not subject to any 
restraints or preconditions.
    41. The proposal to apply the Commission's secondary market 
policies and rules to all transactions involving the use of MSS bands 
for terrestrial services will provide greater predictability and 
regulatory parity with bands licensed for terrestrial mobile broadband 
service. This proposal should make it easier for MSS providers in any 
of the MSS bands to enter into leasing agreements involving terrestrial 
use of their spectrum. The proposal should provide an economic benefit 
for the MSS providers and those entities entering into leasing 
agreements with them. The secondary market leasing rules apply equally 
to all entities, whether small or large. As a result, we believe that 
this proposal will provide an economic benefit to small entities by 
making it easier for small entities to enter into spectrum leasing 
agreements for terrestrial use of the MSS spectrum.
    42. As noted, the proposed secondary market policies will require 
the collection of certain information about the proposed leases. This 
information is necessary for the Commission to make informed decisions 
regarding the proposed leases and should not be overly burdensome. 
Consequently, we do not expect this requirement to have a negative 
economic impact on any small entities.

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

    43. None.

List of Subjects 47 CFR Parts 1, 2 and 25

    Administrative practice and procedure, Communications equipment, 
Radio Reporting and recordkeeping requirements.

Federal Communications Commission
Marlene H. Dortch,
Secretary.

Proposed Rules Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 1, 2 and 25 to 
read 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 1.9001 is amended by revising paragraph (a) to read as 
follows:


Sec.  1.9001  Purpose and scope.

    (a) The purpose of part 1, subpart X is to implement policies and 
rules pertaining to spectrum leasing arrangements between licensees in 
the services identified in this subpart and spectrum lessees. This 
subpart also implements policies for private commons arrangements. 
These policies and rules also implicate other Commission rule parts, 
including parts 1, 2, 20, 22, 24, 25, 26, 27, 80, 90, 95, and 101 of 
title 47, chapter I of the Code of Federal Regulations.
* * * * *

[[Page 49877]]

    3. Section 1.9005 is amended by revising the introductory text and 
by adding paragraph (jj) to read as follows:


Sec.  1.9005  Included services.

    The spectrum leasing policies and rules of this subpart apply to 
the following services:
* * * * *
    (jj) The Ancillary Terrestrial Component of a Mobile Satellite 
Service (part 25 of this chapter).
    4. Section 1.9020 is amended by revising paragraph (e)(2)(i)(A) to 
read as follows:


Sec.  1.9020  Spectrum manager leasing arrangements.

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (A) The license does not involve spectrum that may be used to 
provide interconnected mobile voice and/or data services under the 
applicable service rules and that would, if the spectrum leasing 
arrangement were consummated, create a geographic overlap with spectrum 
in any licensed Wireless Radio Service (including the same service) or 
the Ancillary Terrestrial Component of a Mobile Satellite Service in 
which the proposed spectrum lessee already holds a direct or indirect 
interest of 10% or more (see Sec.  1.2112), either as a licensee or a 
spectrum lessee, and that could be used by the spectrum lessee to 
provide interconnected mobile voice and/or data services;
* * * * *
    5. Section 1.9030 is amended by revising paragraph (e)(2)(i)(A) to 
read as follows:


Sec.  1.9030  Long term de facto transfer leasing arrangements.

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (A) The license does not involve spectrum that may be used to 
provide interconnected mobile voice and/or data services under the 
applicable service rules and that would, if the spectrum leasing 
arrangement were consummated, create a geographic overlap with spectrum 
in any licensed Wireless Radio Service (including the same service) or 
the Ancillary Terrestrial Component of a Mobile Satellite Service in 
which the proposed spectrum lessee already holds a direct or indirect 
interest of 10% or more (see Sec.  1.2112), either as a licensee or a 
spectrum lessee, and that could be used by the spectrum lessee to 
provide interconnected mobile voice and/or data services;
* * * * *
    6. Section Sec.  1.9049 is added to read as follows:


Sec.  1.9049  Special provisions relating to spectrum leasing 
arrangements involving Mobile Satellite Services.

    (a) A license issued under part 25 of the Commission's rules that 
provides authority for an Ancillary Terrestrial Component will be 
considered to provide ``exclusive use rights'' for purpose of this 
Subpart of the rules.
    (b) For purposes of Sec. Sec.  1.9020(d)(8), 1.9030(d)(8), and 
1.9035(d)(4), the licensee's obligation, if any, concerning the E911 
requirements in Sec.  20.18 of this chapter, will, with respect to an 
Ancillary Terrestrial Component, be specified in the licensing document 
for the Ancillary Terrestrial Component.
    (c) The following provision shall apply, in lieu of Sec. Sec.  
1.9020(m) and 1.9030(m), with respect to spectrum leasing of an 
Ancillary Terrestrial Component: Although the term of a spectrum 
leasing arrangement may not be longer than the term of the Ancillary 
Terrestrial Component license, a licensee and spectrum lessee that have 
entered into an arrangement, the term of which continues to the end of 
the current term of the license may, contingent on the Commission's 
grant of a modification or renewal of the license to extend the license 
term, extend the spectrum leasing arrangement into the new license 
term. The Commission must be notified of the extension of the spectrum 
leasing arrangement at the same time that the licensee submits the 
application seeking an extended licensed term. In the event the parties 
to the arrangement agree to extend it into the new license term, the 
spectrum lessee may continue to operate consistent with the terms and 
conditions of the expired license, without further action by the 
Commission, until such time as the Commission makes a final 
determination with respect to the extension or renewal of the license.

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    7. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.

    8. Section 2.106 is amended as follows:
    a. Revise page 36.
    b. Revise footnote US380 to the list of United States (US) 
Footnotes.
    c. Revise footnotes NG156 and NG168 to the list of non-Federal 
Government (NG) Footnotes.


Sec.  2.106  Table of Frequency Allocations.

* * * * *
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[[Page 49878]]

[GRAPHIC] [TIFF OMITTED] TP16AU10.343


[[Page 49879]]


* * * * *

United States (US) Footnotes

* * * * *
    US380 In the bands 1525-1544 MHz, 1545-1559 MHz, 1610-1645.5 MHz, 
1646.5-1660.5 MHz, and 2483.5-2500 MHz, a non-Federal licensee in the 
mobile-satellite service (MSS) may also operate an ancillary 
terrestrial component in conjunction with its MSS network, subject to 
the Commission's rules for ancillary terrestrial components and subject 
to all applicable conditions and provisions of its MSS authorization.
* * * * *

Non-Federal Government (NG) Footnotes

* * * * *
    NG156 Except as permitted below, the use of the 2000-2020 MHz band 
is limited to the MSS and ancillary terrestrial component offered in 
conjunction with an MSS network, subject to the Commission's rules for 
ancillary terrestrial components and subject to all applicable 
conditions and provisions of an MSS authorization. In the 2000-2020 MHz 
band, where the receipt date of the initial application for facilities 
in the fixed and mobile services was prior to June 27, 2000, said 
facilities shall operate on a primary basis and all later-applied-for 
facilities shall operate on a secondary basis to the mobile-satellite 
service (MSS); and not later than December 9, 2013, all such facilities 
shall operate on a secondary basis.
* * * * *
    NG168 Except as permitted below, the use of the 2180-2200 MHz band 
is limited to the MSS and ancillary terrestrial component offered in 
conjunction with an MSS network, subject to the Commission's rules for 
ancillary terrestrial components and subject to all applicable 
conditions and provisions of an MSS authorization. In the 2180-2200 MHz 
band, where the receipt date of the initial application for facilities 
in the fixed and mobile services was prior to January 16, 1992, said 
facilities shall operate on a primary basis and all later-applied-for 
facilities shall operate on a secondary basis to the mobile-satellite 
service (MSS); and not later than December 9, 2013, all such facilities 
shall operate on a secondary basis.
* * * * *

PART 25--SATELLITE COMMUNICATIONS

    9. The authority citation for part 25 continues to read as follows:

    Authority: 47 U.S.C. 701-744. Interprets or applies Sections 4, 
301, 302, 303, 307, 309 and 332 of the Communications Act, as 
amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309 and 332, 
unless otherwise noted.

    10. Section 25.149 is amended by adding paragraph (g) to read as 
follows:


Sec.  25.149  Application requirements for ancillary terrestrial 
components in the mobile-satellite service networks operating in the 
1.5./1.6 GHz, 1.6/2.4 GHz and 2 GHz mobile-satellite service.

* * * * *
    (g) Spectrum leasing. Lease of spectrum rights by MSS licensees or 
system operators for ATC use is subject to the rules spectrum leasing 
arrangements as set forth in Part 1, subpart X of the rules (see 
Sec. Sec.  1.9001 through 1.9080 of this chapter.).

[FR Doc. 2010-19824 Filed 8-13-10; 8:45 am]
BILLING CODE 6712-01-P