[Federal Register Volume 76, Number 111 (Thursday, June 9, 2011)]
[Rules and Regulations]
[Pages 33653-33656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14314]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 80 and 90

[WT Docket No. 04-344; FCC 11-80]


Maritime Communications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) denies a petition for reconsideration of the period 
in which inland VPCSA incumbents must vacate Channel 87B, and declines 
to extend this period generally to non-AIS operations because such an 
extension would undermine the primary goal of this proceeding. Further, 
the Commission determines that rechannelizing the VPC frequency band

[[Page 33654]]

in order to facilitate more efficient spectrum usage is beyond the 
scope of this rulemaking proceeding.

DATES: Effective July 11, 2011.

FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, [email protected], 
Wireless Telecommunications Bureau, (202) 418-1617, or TTY (202) 418-
7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Memorandum Opinion and Order (MO&O) in WT 
Docket No. 04-344, FCC 11-80, adopted on May 24, 2011, and released on 
May 26, 2011. 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., Washington, DC 20554. The 
complete text 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. Alternative formats are available to persons with 
disabilities by sending an e-mail to [email protected] or by calling the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    1. AIS, which is used to monitor and track maritime traffic for 
purposes of both navigational safety and homeland security, is a global 
maritime navigation safety communications system through which marine 
vessels automatically transmit navigational data to appropriately 
equipped shore stations, other ships, and aircraft. The International 
Telecommunication Union has designated VHF maritime Channel 87B for AIS 
use in international waters. In the Report and Order, published at 71 
FR 60067, October 12, 2006, in this proceeding, the Commission 
designated Channel 87B for exclusive AIS use only in the nine maritime 
VPCSAs. Because the majority of the commenters favored designating 
Channel 87B for exclusive AIS use nationwide, the Commission invited 
comment in the Further Notice of Proposed Rule Making (Further NPRM), 
published at 71 FR 60102, October 12, 2006, on whether to extend the 
AIS designation to the thirty-three inland VPCSAs. In the Second Report 
and Order, published at 74 FR 5117, September 29, 2009, the Commission 
concluded that it would serve the public interest to designate Channel 
87B for exclusive AIS use on a nationwide basis. The Commission 
required inland VPCSA licensees to vacate Channel 87B within two years 
after the effective date of the redesignation of Channel 87B.
    2. Two duplex VPC channels had been set aside for public safety 
interoperability in each inland VPCSA. Specifically, Channel 25 
(157.250/161.850 MHz) was set aside in each inland VPCSA, and either 
Channel 84 (157.225/161.825 MHz) or Channel 85 (157.275/161.875 MHz) 
was also set aside in each inland VPCSA. The Commission determined in 
the Second Report and Order that it was appropriate to redesignate 
Channels 84 and 85 for use by inland VPC licensees. PacifiCorp, among 
other commenters, specifically requested this additional VPC spectrum. 
The Commission grandfathered the public safety incumbents on Channels 
84 and 85 for fifteen years following the effective date of the 
redesignation of Channel 87B. The Commission recognized that, with the 
inland VPCSA licensees having to vacate Channel 87B within two years 
while the public safety incumbents could remain on Channels 84 and 85 
for fifteen years, there would be a period during which some inland 
VPCSA incumbents would have to protect incumbent public safety 
operations on Channel 84 or 85.
    3. PacifiCorp argues that allowing public safety incumbents to 
remain on Channels 84 and 85 for up to fifteen years while mandating 
that inland VPCSA licensees migrate to those channels within two years 
significantly undermines the ability of certain geographic area 
licensees on VPC Channel 87, such as PacifiCorp, to make a seamless 
transition to replacement Channels 84 and 85. It requests that the 
Commission extend the grandfathering period for inland VPCSA licensees 
to remain on Channel 87B to six months after the public safety 
incumbent(s) in that VPCSA vacate Channel 84 or 85. In the alternative, 
PacifiCorp requests that affected inland VPCSA licensees be given the 
right to apply for an unlicensed exclusive-use channel in the VHF band, 
such as a part 22 VHF channel, to use until six months after Channel 84 
or 85 is vacated.
    4. The Commission declines to extend the grandfathering period for 
inland VPCSA licensees to remain on Channel 87B. The paramount goal of 
this proceeding is to ensure that AIS is deployed widely, quickly, 
reliably, and cost-effectively, and in a manner that will maximize its 
capabilities. In the Second Report and Order, moreover, the Commission 
concluded that there are compelling safety and national security 
reasons to designate Channel 87B for AIS on a nationwide basis. 
Permitting the continued use of Channel 87B for non-AIS communications, 
the Commission stated, would compromise the integrity of the domestic, 
and by extension the global, AIS network. The Commission continues to 
believe that permitting inland VPCSA incumbents to remain on Channel 
87B for an extended period would impede the rapid, interference-free 
implementation of the domestic AIS network, and thus undermine the 
primary goal of this proceeding. In addition, the Commission does not 
believe that the record substantiates the claim that inland VPCSA 
licensees in general are unduly burdened by the requirement to migrate 
to Channel 84 or 85 within two years while protecting any co-channel 
public safety incumbents for up to fifteen years. In most of the part 
of the country that is divided into inland VPCSAs, there are no public 
safety incumbents on Channel 84 or 85. No other inland VPCSA incumbent 
has sought reconsideration of the grandfathering provisions adopted in 
the Second Report and Order, and even PacifiCorp confines its 
discussion to the situation in Wyoming. The Commission's rules permit 
PacifiCorp to request a waiver, and argue why its circumstances satisfy 
the applicable waiver standard. The Commission therefore finds that 
PacifiCorp has not demonstrated a need to revisit the grandfathering 
provisions adopted in the Second Report and Order.
    5. PacifiCorp also asserts that, even where Channels 84 and 85 are 
not encumbered by public safety incumbents, the designation of those 
channels as VPC spectrum does not fully offset inland VPCSA licensees' 
loss of Channel 87B. VPC channels are 25 kilohertz wide, but, under 
Sec.  80.371(c)(1)(iii) of the Commission's rules, VPC licensees may 
also operate on 12.5 kHz offset frequencies in areas where the licensee 
is authorized on both frequencies adjacent to the offset frequency, and 
in areas where the licensee on the other side of the offset frequency 
consents to the licensee's use of the adjacent offset frequency. Thus, 
an inland VPCSA incumbent licensed on Channels 27 (157.350/161.950 
MHz), 87 (157.375/161.975 MHz), and 28 (157.400/162.000 MHz) can 
operate on the interstitial channel between Channels 27 and 87 and the 
interstitial channel between Channels 87 and 28. After the licensee 
replaces Channel 87B with Channel 84 or 85, however, it loses those two 
interstitial channels and gains only one interstitial channel (i.e., 
either the interstitial channel between Channels 24 and 84 or the 
interstitial channel between Channels 85 and 26), because Channels 84 
and 85 both are adjacent to Channel 25, which remains

[[Page 33655]]

designated for public safety interoperability. Consequently, PacifiCorp 
argues, requiring an inland VPCSA incumbent to relocate from Channel 
87B to Channel 84 or 85 will result in a net loss to the incumbent of 
at least one 12.5 kHz interstitial channel.
    6. To address both this particular issue and what PacifiCorp views 
more broadly as the current inefficient use of the VPC spectrum, 
PacifiCorp recommends that the Commission revise the channel plan for 
the inland VPCSAs. Specifically, PacifiCorp proposes that the 
Commission split the 25 kHz VPC channels into adjacent 12.5 kHz 
channels, and permit inland VPC licensees to use two 12.5 kHz channels 
with channel centers offset 6.25 kHz from the center frequency of each 
existing 25 kHz channel. In the alternative, PacifiCorp suggests that 
the Commission retain the existing VPC band plan, but shift the twenty-
five kilohertz of spectrum that is designated for public safety 
interoperability in order to make an additional interstitial channel 
available for VPC use. Such action, PacifiCorp says, will allow for 
more intensive use of VPC spectrum by avoiding the stranding of 
spectrum where a licensee chooses to deploy more spectrally-efficient 
12.5 kHz equipment but does not control both of the adjacent 25 kHz 
channels.
    7. The Commission concludes that PacifiCorp's proposals to modify 
the VPC channel plan are beyond the scope of this rulemaking 
proceeding. The Further NPRM did not seek comment on them, and they are 
not a logical outgrowth of any proposals that the Further NPRM did 
make. In the Further NPRM, the Commission did not invite comment on 
modifying either the VPC channel plan or the public safety 
interoperability set-aside (except for redesignating one channel for 
VPC use), and did not suggest that it might change the rules with 
respect to any channels other than Channels 84, 85, and 87. Nor did any 
commenter raise the possibility. The Commission sees no reason to 
depart here from its well-established policy of not considering matters 
that are first raised on reconsideration, absent extenuating 
circumstances. This policy serves the same goals of procedural 
regularity, administrative efficiency, and fundamental fairness that 
underlie Section 405 of the Communications Act of 1934, as amended, and 
the notice-and-comment rulemaking requirements of the Administrative 
Procedure Act (APA).
    8. PacifiCorp argues that its proposed alternative channel plans 
are a natural and logical outgrowth of actions already contemplated and 
taken by the Commission, and would merely complete the prior efforts by 
the Commission to `restore the operating capacity' of inland VPCSA 
licensees. The Commission disagrees. In determining whether an agency's 
adopted rule can be deemed a logical outgrowth of a proposed rule, the 
focus of the inquiry is on whether the purposes underlying the APA 
notice-and-comment requirements have been served. In furtherance of 
this inquiry, the agency should consider whether a new round of notice 
and comment would provide the first opportunity for interested parties 
to offer comments that could persuade the agency to modify its rule, 
and whether the final rule could have been anticipated by persons with 
knowledge of the proposed rule. The Commission concludes that 
interested parties who potentially may have objected to, or wished to 
comment on, the rule changes now proposed by PacifiCorp did not have 
meaningful notice that such rule changes might be adopted, and could 
not have anticipated that, in this proceeding focused on domestic 
implementation of AIS, the Commission might broadly revise the VPC 
channel plan. The primary objective of the rulemaking proceeding is to 
ensure that the United States can take full advantage of the 
navigational safety and homeland security benefits of AIS, but 
PacifCorp's proposals address matters regarding the VPC frequency band 
that are at best ancillary to this objective. Nothing in the Further 
NPRM suggested that the Commission might consider such action. The 
Commission therefore holds that it would not be reasonable to construe 
the Further NPRM as providing notice that the Commission might adopt 
special measures, which had not yet been identified, if necessary to 
ensure that inland VPCSA licensees could fully duplicate their prior 
operations, and that PacifCorp's proposed alternative channel plans are 
too remote from anything discussed or suggested in either the Further 
NPRM or the comments to be deemed a ``logical outgrowth.'' The 
Commission therefore denies PacifCorp's petition insofar as it asks the 
Commission to adopt one of PacifiCorp's alternative VPC channel plans.
    9. Having determined to affirm its decisions regarding the 
grandfathering provisions adopted in the Second Report and Order, the 
Commission amends Sec.  80.371(c)(1)(i) of its rules to more precisely 
conform it to those decisions. As noted above, the Commission 
grandfathered two site-based licensees operating on Channel 87B in 
inland VPCSAs for fifteen years. Site-based Channel 87B licensees in 
the maritime VPCSAs are grandfathered only until their current license 
terms expire. But note three to Sec.  80.371(c)(1)(i) of the 
Commission's rules was not amended to reflect the Commission's decision 
in the Second Report and Order to provide a different grandfathering 
period for the site-based licensees operating on Channel 87B in the 
inland VPCSAs, and thus incorrectly provides, without qualification, 
that no site-based authorization to use Channel 87B will be renewed. As 
the Commission has explained, while accurate prior to the adoption of 
the Second Report and Order, that statement is now accurate only with 
regard to the Channel 87B site-based incumbents in the maritime VPCSAs. 
The Commission therefore amends note three to reflect that Channel 87B 
site-based incumbents in inland VPCSAs have been grandfathered for 
fifteen years, irrespective of their remaining license term.
    10. Finally, the Commission also corrects a typographical error in 
Sec.  2.106 of its rules, note US228, and Sec.  90.20(g)(2)(ii) of its 
rules, which state that incumbent site-based Channel 87B licensees in 
the inland VPCSAs are grandfathered until March 4, 2024, rather than 
March 2, 2024 (fifteen years after the effective date of the rule 
amendments adopted in the Second Report and Order. (Note US228 was 
codified as note US399 in the Second Report and Order, but was later 
renumbered.)

I. Procedural Matters

A. Paperwork Reduction Act Analysis

    11. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
    12. The Commission will send a copy of this Memorandum Opinion and 
Order to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
    13. Accordingly, pursuant to section 405(a) of the Communications 
Act of 1934, as amended, 47 U.S.C. 405(a), and Sec.  1.429 of the 
Commission's rules, 47 CFR 1.429, that the petition for

[[Page 33656]]

reconsideration filed by PacifiCorp on March 2, 2009, is denied.
    14. Pursuant to the authority of sections 4(i), 303(r), and 403 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 
403, that parts 2 and 80 of the Commission's rules are amended as set 
forth below, effective July 11, 2011.
    15. The proceeding WT Docket No. 04-344 is hereby terminated.

List of Subjects in 47 CFR Parts 2, 80 and 90

    Communications equipment, Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 2, 80 and 90 as follows:

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

0
1. The authority citation for part 2 continues to read as follows:

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


0
2. Section 2.106 is amended by revising footnote US228 to the Table of 
Frequency Allocations to read as follows:


Sec.  2.106  Table of Frequency Allocations.

UNITED STATES (US) NOTES

* * * * *
    US228 The use of the bands 161.9625-161.9875 MHz (AIS 1 with center 
frequency 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with center 
frequency 162.025 MHz) by the maritime mobile service is restricted to 
Automatic Identification Systems (AIS), except that non-Federal 
stations in the band 161.9625-161.9875 MHz may continue to operate on a 
primary basis according to the following schedule:
    (a) In VHF Public Coast Service Areas (VPCSAs) 1-9, site-based 
stations licensed prior to November 13, 2006 may continue to operate 
until expiration of the license term for licenses in active status as 
of November 13, 2006;
    (b) In VPCSAs 10-42, site-based stations licensed prior to March 2, 
2009 may continue to operate until March 2, 2024; and
    (c) In VPCSAs 10-42, geographical stations licensed prior to March 
2, 2009 may continue to operate until March 2, 2011. See 47 CFR 
80.371(c)(1)(ii) for the definitions of VPCSAs and geographic license.
* * * * *

PART 80--STATIONS IN THE MARITIME SERVICES

0
3. The authority citation for part 80 continues to read as follows:

    Authority: Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 
1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless 
otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, 
as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 
UST 2377.


0
4. Section 80.371 is amended by revising footnote 3 to the table in 
paragraph (c)(1)(i) to read as follows:


Sec.  80.371  Public correspondence frequencies.

* * * * *
    (c)(1)(i) * * *
    \3\ The frequency 161.975 MHz is available only for Automatic 
Identification System communications. No license authorizing a site-
based VHF Public Coast Station or a Private Land Mobile Radio Station 
to operate on the frequency 161.975 MHz in VHF Public Coast Service 
Areas (VPCSAs) 1-9 will be renewed unless the license is or has been 
modified to remove frequency 161.975 MHz as an authorized frequency. In 
VPCSAs 10-42, site-based stations licensed to operate on frequency 
161.975 MHz prior to March 2, 2009 may continue to operate on a co-
primary basis on that frequency until March 2, 2024. Licenses 
authorizing geographic stations to operate on frequency 161.975 MHz 
will be modified on March 2, 2011 to replace the frequency with either 
frequency pair 157.225/161.825 MHz (VPCSAs 10-15, 23-30, 33-34, 36-39, 
and 41-42) or frequency pair 157.275/161.875 MHz (VPCSAs 16-22, 31-32, 
35, and 40), unless an application to so modify the license is granted 
before that date.
* * * * *

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
5. 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), 332(c)(7).


0
6. Section 90.20 is amended by revising paragraph (g)(2)(ii) to read as 
follows:


Sec.  Public Safety Pool.  

* * * * *
    (g) * * *
    (2) * * *
    (ii) The channel pairs 157.225 MHz/161.825 MHz and 157.275 MHz/
161.875 MHz were formerly allocated and assigned under this section as 
public safety interoperability channels but were reallocated for 
assignment as VHF public coast station channels under Sec.  80.371(c) 
of this chapter. Public safety operations licensed on these channels as 
of March 2, 2009 or licensed pursuant to an application filed prior to 
September 19, 2008, may remain authorized to operate on the channels on 
a primary basis until March 2, 2024.
* * * * *
[FR Doc. 2011-14314 Filed 6-8-11; 8:45 am]
BILLING CODE 6712-01-P