[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Proposed Rules]
[Pages 15665-15681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5689]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 22
[WT Docket No. 12-40; RM-11510; FCC 12-20]
Cellular Service, Including Changes in Licensing of Unserved
Area; Interim Restrictions and Procedures for Cellular Service
Applications
AGENCY: Federal Communications Commission.
ACTION: Proposed rule; interim procedures.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) proposes to amend the rules governing the 800 MHz Cellular
Radiotelephone Service (Cellular Service). In the Notice of Proposed
Rulemaking (NPRM), the Commission proposes to transition the Cellular
Service from a site-based licensing model to a geographic-based model
by offering an ``overlay'' license for every Cellular Market Area (CMA)
and corresponding channel block (Block A or Block B), in two stages,
via auction. The Overlay Licensees would be obligated to protect
existing licensees' Cellular operations from harmful interference. The
NPRM also includes proposals to update various other Cellular Service
rules. The Commission seeks comment on all its proposals as well as on
alternative proposals. The companion Order imposes certain interim
procedures, including a freeze on the filing of certain Cellular
applications in certain markets and
[[Page 15666]]
other interim procedures regarding currently pending applications to
help ensure an orderly and efficient rulemaking proceeding while the
Commission considers changes to the Cellular Service rules.
DATES: Submit comments on or before May 15, 2012, and reply comments
are due on or before June 14, 2012. 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 May 15, 2012.
ADDRESSES: Parties may submit comments to the Secretary of the Federal
Communications Commission, identified by WT Docket No. 12-40; FCC No.
12-20, by any of the following methods:
[ssquf] Electronic Filers: Comments may be filed electronically
using the Internet: http://fjallfoss.fcc.gov/ecfs2/.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing.
[ssquf] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone 202-418-
0530 or TTY: 202-418-0432.
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 email to [email protected] and to Nicholas A.
Fraser, OMB, via email to [email protected] or via fax
at 202-395-5167. 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: Nina Shafran, Wireless
Telecommunications Bureau, Mobility Division, at 202-418-2781 or by
email to [email protected]. For additional information concerning
Paperwork Reduction Act information collection requirements contained
in this document, send an email to [email protected] or contact Judith B.
Herman at (202) 418-0214.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking and Order (NPRM and Order) in WT Docket No. 12-
40, FCC 12-20, adopted and released on February 15, 2012. The full text
of the NPRM and Order, including all Appendices, 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 complete text of the NPRM and Order may be
downloaded at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-20A1.doc. In addition, the complete text of the NPRM and Order as
well as links to Cellular Service coverage maps and interactive map
files are available at: http://www.fcc.gov/rulemaking/12-40.
Alternative formats are available to persons with disabilities by
sending an email to [email protected] or by calling the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty).
Paperwork Reduction Act of 1995 Analysis
This document contains potential new and modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and OMB
to comment on the potential 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.''
Synopsis of the Notice of Proposed Rulemaking
I. Introduction
1. Since its inception roughly 30 years ago, the Cellular Service
has been instrumental in transforming the communications landscape by
making mobile services broadly available to the American public. As
discussed in Section III below, based on our data, only limited area
not yet licensed (Unserved Area) remains outside of Alaska and certain
rural markets in the western United States. At this advanced stage of
the Cellular Service, the site-based aspect of this licensing model is
yielding diminished returns. The significant administrative burdens on
licensees associated with the site-based model no longer appear to be
outweighed by the public benefits produced. In addition, the Cellular
Service stands apart from virtually all other commercial wireless
services by not yet transitioning to a geographic-based model, which
offers greater flexibility and reduced regulatory requirements. Thus,
consistent with its regulatory reform agenda, the Commission proposes
to revise the Cellular licensing regime to a geographic-based approach,
in two stages, through competitive bidding, as explained in detail in
Section III, below.
2. The Commission also proposes to update the Cellular Service
rules, including, for example, streamlining application requirements
and deleting certain data collection requirements that may no longer be
necessary going forward. Consistent with other flexibly licensed
commercial wireless services, the Commission proposes to establish a
signal field strength limit. Finally, we seek comment on whether to
move the part 22 Cellular rules, as well as the part 24 rules, to part
27. We seek comment on all aspects of our proposals, and on the
alternative transition proposals discussed in the NPRM, including those
of CTIA--The Wireless Association (CTIA), as set forth in its initial
petition for rulemaking filed in February 2008, and its revised
proposal submitted in September 2010, and those of the National
Telecommunications Cooperative Association (NTCA), The Rural
Telecommunications Group (RTG), and others on the record. (All
commenters are listed in Appendix A of the NPRM and Order.)
II. Background
3. Brief History of Cellular Service Licensing. The Commission
adopted initial rules governing allocation of spectrum for commercial
Cellular service, including the establishment of two channel blocks
(Blocks A and B), in 1981. The Commission established in phases 734
Cellular Market Areas (CMAs) for the purpose of issuing licenses to two
Cellular providers per market (herein, ``Original System Licensees''
(OSLs)), one on each Block, without competitive bidding. Every OSL was
given the exclusive right, for a five-year period from the date of
grant of the initial construction authorization for that CMA Block, to
build out anywhere within the CMA boundary. The area timely built out
during that five-year period became the licensee's initial Cellular
Geographic Service Area (CGSA), the licensed area entitled to
protection from harmful interference, while any area not built out by
the five-year mark was automatically relinquished for re-licensing as
Unserved Area on a site-by-site basis by
[[Page 15667]]
the Commission. Under site-based licensing, any interested party may
request authorization to construct at a specific transmitter location
(or multiple locations) in Unserved Area, and may only construct
authorized transmitters. For all CMA Blocks except one (Chambers,
Texas, discussed in detail below), licenses have been issued to OSLs
and the initial five-year periods have expired.
4. The Commission established two phases for applicants seeking to
provide Cellular service in Unserved Area for each CMA Block: Phase I
and Phase II. As of late 2007, the Phase I filing window had ended in
all licensed Blocks. Under current rules, Phase II lasts indefinitely.
Phase II applications specify the area to be licensed and are subject
to a 30-day public comment period during which petitions to deny and
mutually exclusive applications may be filed. In the event that
mutually exclusive applications are filed for a particular Unserved
Area, they are resolved through competitive bidding in closed auctions.
Licenses granted in Phase II are subject to a one-year construction
deadline for the authorized site and the licensee must be providing
service to subscribers by the end of the one-year period; failure to
build out results in automatic termination of the authorization for
that site, and the Unserved Area again is subject to the filing of
site-based applications.
5. Summary of Industry Proposals on the Record. In October 2008,
CTIA filed a Petition requesting that the Commission change Cellular
licensing from a site-based regime to a geographic area-based regime in
all markets and to assign to incumbents, without using competitive
bidding, all remaining Unserved Area. The Wireless Telecommunications
Bureau (Bureau) subsequently issued a Public Notice seeking comment on
CTIA's Petition. (See 24 FCC Rcd 27 (WTB 2009).) Ten parties filed
comments, six (including CTIA) filed reply comments, and two (including
CTIA) filed ex parte letters. In September 2010, CTIA submitted a
revised proposal (CTIA Revised Plan) which it asserts ``takes into
account the objectives and concerns raised by commenters in this
proceeding.'' RTG filed comments specifically addressing the CTIA
Revised Plan. In May 2011, CTIA, GCI Communication Corp. (GCI), NTCA,
and RTG met with Commission staff to express their additional views
regarding transition approaches for Cellular licensing and,
accordingly, filed ex parte letters. Subsequently, in February 2012,
CTIA, AT&T, Inc. (AT&T) and Verizon Wireless met with Commission staff
to express their additional views regarding transition approaches for
Cellular licensing and CTIA filed ex parte letters accordingly.
6. In its Revised Plan, CTIA appears to be proposing that the
Commission change the Cellular Service to geographic area-based
licensing and terminate site-based access to Unserved Area on a rolling
basis, as CMA Blocks become ``Fully Served.'' CTIA defines a Fully
Served Block as one where either: (1) 90 percent of the land area is
served; or (2) there is no parcel of Unserved Area measuring at least
50 contiguous square miles. Under both prongs, CTIA proposes to exclude
``government lands, but not tribal areas.'' All Unserved Area in Fully
Served Blocks would be assigned to existing incumbents ``on a
proportional basis'' without the use of competitive bidding. Disputes
over existing CGSA boundaries and the distribution of the remaining
Unserved Area to incumbents would, under CTIA's Revised Plan, need to
be resolved through cooperation among licensees and in the event that
such cooperative efforts fail, by referral to arbitration at the
expense of the referring party. So long as a CMA Block is ``under-
served'' (i.e., not Fully Served), CTIA proposes that it remain under
site-based licensing rules.
7. AT&T and Verizon Wireless generally endorse CTIA's Petition;
they have not submitted comments specifically addressing CTIA's Revised
Plan. In response to the CTIA Petition, Verizon Wireless offers various
additional proposals, including a staggered transition process based on
regional groupings of CMA Blocks; establishment of a 40 dB[micro]V/m
median field strength limit; the provision of public notice of, and
opportunity to comment on, claimed licensed area boundaries; and a plan
for informal dispute resolution of boundary claims (more detailed than
in CTIA's Petition), in which a de minimis discrepancy standard would
be applied.
8. In contrast, commenters representing the interests of smaller
and rural providers generally favor indefinite retention of the current
site-based licensing regime. These commenters include Commnet Wireless,
LLC (Commnet), GCI, NTCA, the Rural Independent Competitive Alliance
(RICA), RTG, and United States Cellular Corporation (USCC). RTG, for
example, criticizes CTIA's Revised Plan by asserting that it provides
no incentive to serve areas obtained through the proposed proportional
allotment and that its definition of Fully Served ``could leave large
areas * * * without service indefinitely.'' NTCA claims that its
members are asked by their communities to ensure that hikers, hunters,
and others enjoying the most rural territory can complete a call in an
emergency. Commnet continues to send technicians to Unserved Area to
determine if there is demand for service and claims that with most of
its Unserved Area applications, the OSL could have applied for that
spectrum ``over at least sixteen years'' but did not do so. GCI, which
operates in Alaska, urges continuation of site-based licensing and is
concerned it will be unable to improve (or even maintain) its network
if the Commission adopts CTIA's proposal.
9. The smaller and more rural providers largely reject CTIA's
statistics. According to RTG, for example, CTIA's Petition misleadingly
``undercounts actual use of the [site-based licensing] process'' by
reporting only grants, not filings, and only new applications, not
modification applications. RICA, GCI, and NTCA make similar arguments.
Several of these commenters are also skeptical of CTIA's proposed
mechanisms for resolving disputes that may arise between adjacent
licensees concerning license boundaries. USCC argues that a voluntary
consultation process is unworkable for dispute resolution without legal
standards.
10. While preferring retention of the existing paradigm, some rural
commenters state that they could accept, in the alternative, a limited
transition to geographic-area licensing. Their suggestions, however,
are not highly detailed and contain ambiguities. GCI, for example,
indicates support for issuance of a CMA-based license if the CGSA is
coterminous with the CMA boundary or if Unserved Area in the CMA Block
is less than 50 square miles but does not specify how the small areas
would be licensed. NTCA suggests that, if an incumbent's ``actual
service area'' is not coterminous with the CMA Block boundary, or if
there is an Unserved Area parcel that is 50 square miles or larger, the
Commission could establish a geographic license but based only on the
territory ``actually served by the licensee.'' RTG states that Cellular
licensees could ``elect * * * to transition to some form of market-
based licensing,'' but only where the new market-based license ``would
encompass the areas they actually serve.'' USCC, a mid-sized carrier,
states that issuance of a CMA-based license may be appropriate in
limited circumstances, but argues that site-based licensing should be
retained at least in any market with at least one Unserved Area
Licensee (defined in the NPRM and Order as a licensee that has
established a Cellular system solely
[[Page 15668]]
through the Unserved Area application process following expiration of
the OSL's exclusive five-year initial build-out period), so that OSLs
and Unserved Area Licensees have equal opportunity to expand their
systems.
11. Commenters differ on the issue of how to assign geographic area
licenses. MetroPCS Communications, Inc. (MetroPCS), another mid-sized
carrier, advocates a transition to geographic-area licensing via
auction. AT&T states broadly that, for CMA Blocks with over 50
contiguous square miles of Unserved Area, the Commission should
``license that area through an auction or some other process.'' In
response, USCC argues that an auction is unnecessary in light of the
existing normal closed auction process for mutually exclusive Unserved
Area applications. In Ex Parte letters filed by CTIA to document
various meetings with Commission staff in early 2012, which involved
representatives of AT&T and Verizon Wireless as well, CTIA expresses
concerns of CTIA, AT&T and Verizon Wireless with an overlay auction
approach for markets that are not substantially served. Commnet
emphasizes that the Commission used competitive bidding in prior
transitions to geographic area licensing.
III. Notice of Proposed Rulemaking
12. Based on the record, it appears that site-based licensing may
unduly limit licensees' ability in many markets to adapt to
technological and marketplace changes, which burdens licensees and
consumes FCC staff resources, as application filings are required for
even minor technical system changes. These problems can be addressed by
moving to a geographic-based model, which would bring the Cellular
Service into greater harmony with the more flexible licensing schemes
used successfully by other similar mobile services, such as the
Broadband Personal Communications Service (PCS) and the 700 MHz
Service. At the same time, we propose to preserve direct access to
Unserved Area through the existing site-based application process for
an appropriate period in Cellular Service markets that are less
substantially built out.
13. In anticipation of releasing the NPRM, the Commission undertook
the task of creating a digital version of every existing CGSA based on
maps accompanying Cellular applications. The data, which the Commission
used to calculate licensed and Unserved Area, is available at the
Commission's Web site (see http://www.fcc.gov/rulemaking/12-40). It is
clear from our data that the vast majority of CMA Blocks already are
substantially built out. (Maps illustrating the data are provided at
Appendices B and D of the NPRM and Order.) Licensees in these markets,
which we term ``Substantially Licensed'' as set forth below, have faced
increasing regulatory challenges, however. Among other things, they do
not have the ability to modify and expand their systems without
Commission filings, and must seek prior Commission approval through
filings if the CGSA would be expanded, even for minor adjustments to
their systems. We believe that it would serve the public interest to
reduce administrative burdens for these licensees (as well as for
Commission staff) by providing Cellular licensees in such markets with
greater flexibility to modify their operations to respond more quickly
to market conditions. Moreover, the Commission has long held that
market-based licensing regimes are simpler to administer for all
parties.
14. We recognize that, with direct access to Unserved Area through
the site-based licensing regime, licensees and prospective new entrants
are free to respond to market changes by filing an application on an
as-needed basis (for a filing fee) without use of competitive bidding
in most cases. We believe that there are public interest benefits of
preserving such direct access by all interested parties, for some
defined period, to any Unserved Area in CMA Blocks that are less
substantially built out (i.e., not Substantially Licensed under our
proposed test). While site-based application filings would continue to
be required for some period going forward in these markets, there is a
significantly smaller volume of system modification filings in areas
that are less built out.
15. Additionally, in developing a new model aimed at transitioning
the Cellular Service to a geographic-based model, we must keep in mind
long-held Commission policies governing spectrum assignment. The
Balanced Budget Act of 1997 (BBA) revised the Commission's auction
authority by substantially amending sections 309(j)(1) and (2) of the
Communications Act of 1934, as amended (Act). (See 47 U.S.C. 309(j)(1),
(2).) Under section 309(j)(1), with limited exceptions that are not
applicable here, the Commission is required to license spectrum through
competitive bidding whenever it accepts mutually exclusive applications
for initial licenses or permits. The Commission has determined that
applications are ``mutually exclusive'' if the grant of one application
would effectively preclude the grant of one or more of the other
applications, i.e., when acceptable, competing applications for the
same license are filed. (When, however, the Commission receives only
one application that is acceptable for filing for a particular license
that is otherwise subject to auction, there is no mutual exclusivity,
and thus, the Commission is not required to conduct an auction for that
license.) Consistent with the Commission's policy that competitive
bidding places licenses in the hands of those that value the spectrum
most highly, we believe that it would be in the public interest to
adopt the transition described below, which allows the filing of
mutually exclusive applications that would be resolved through
competitive bidding.
16. In light of the above-described goals and considerations, we
propose to issue CMA-based Overlay Licenses for all Blocks via Stage I
and Stage II auctions, thus making immediately available to the Overlay
Licensee, for primary service, all Unserved Area remaining in the
particular Block as of an established cut-off date. An overlay license
is issued for the entire geographic area (in this case, the entire CMA
Block), but requires the overlay licensee to provide interference
protection to incumbent operations (in this case, Cellular Service
incumbents' CGSAs existing as of a certain cut-off date). In Stage I,
we would offer Overlay Licenses only for those CMA Blocks that either:
(1) As of a certain cut-off date, are Substantially Licensed pursuant
to certain benchmarks (described below); or (2) have Cellular service
that has been authorized solely under interim operating authority (IOA)
(i.e., for which no primary license has been issued). All other Blocks
would remain subject to the current site-based Unserved Area licensing
system until we implement Stage II of the transition and offer Overlay
Licenses for these remaining CMA Blocks. We seek comment on whether
seven years is the appropriate timeframe before initiation of Stage II.
As explained below, we propose to exempt from the transition the Gulf
of Mexico Service Area (GMSA).
17. We invite comment on all aspects of our proposals, as well on
the expected costs and benefits (to the extent applicable) of operating
under our proposal. For example, would the resulting lack of data that
would otherwise be collected and available to the public through the
Commission's Universal Licensing System and other databases (i.e., data
that is currently available regarding major and minor CGSA modification
applications, grants, construction notifications, etc., indicating the
location of Cellular
[[Page 15669]]
Service transmitter sites) constitute a detrimental cost? If so, to
what extent? Would the cost be outweighed by the benefits associated
with the reduction in regulatory burdens, paperwork, and other aspects
of our proposal? By reducing the filing burdens on many Cellular
providers, we would expect resulting lower costs for the providers, and
in turn, we would expect such lower costs to have a positive effect on
service to subscribers. We seek comment on these cost considerations,
including quantification of expected savings (in terms of monetary and
human resources, for example) resulting from no longer having to submit
certain applications once fixed boundaries have been established. We
also seek comment on the extent to which expected savings might be
passed on to subscribers. We hope these proposals will also promote
enhanced competitive options for consumers and we seek comment on any
additional steps the Commission could take, in this proceeding, to
promote this policy priority.
A. Stage I Transition
1. Substantially Licensed CMA Blocks
18. We propose to treat a CMA Block as Substantially Licensed if
either of the following benchmarks is met: (1) At least 95 percent of
the total land area is licensed; or (2) there is no unlicensed parcel
within the Block at least 50 contiguous square miles in size. An
analysis of Cellular licensed area by Block reflects that only about 20
percent of the 1,468 CMA Blocks are geographically licensed between
less than 10 percent up to roughly 94 percent. The vast majority of all
Blocks (approximately 80 percent) fall at or above the 95 percent
licensed threshold, representing in our view a logical breaking point
for inclusion in Stage I of the proposed transition. We also recognize,
however, that a Block that has less than 95 percent of its total land
area licensed might not have sufficient size parcels of Unserved Area
to warrant exclusion from transition in Stage I. Our current rules
prohibit a new entrant from applying to serve an area smaller than 50
contiguous square miles. We therefore propose that a Block be deemed
Substantially Licensed if it does not have even one remaining
unlicensed parcel that is at least 50 contiguous square miles in size,
regardless of the percentage of licensed area. (The small number of CMA
Blocks in this category does not affect the approximate 80 percent/20
percent split between the Stage I and Stage II Blocks under our
proposal.)
19. Specifically, 601 of the 734 Block A markets appear to meet the
proposed test, and 596 of the 734 Block B markets appear to meet the
proposed test, for a total of 1,197 of 1,468 Blocks. The maps provided
in Appendix D (see full text of the NPRM and Order) illustrate, for
each Block, which markets appear to meet the proposed test and which
markets, while served, do not.
20. We propose to include total land area without exclusions in our
calculation of licensed area and Unserved Area. We propose to treat
government lands differently in this Cellular Service transition,
compared to our treatment in the 700 MHz Service, for two reasons.
First, the 700 MHz Service ``government lands'' exclusion was adopted
in conjunction with the imposition of aggressive construction
benchmarks, which for the first time included mandatory coverage of
geography (rather than population). In our proposed Cellular Service
transition, the calculation is not based on a consideration of
compliance with future construction benchmarks but is solely for
purposes of determining whether a CMA Block meets our test for
inclusion in Stage I. Second, in our analysis of digitized CGSAs, we
observed that Cellular licensees have frequently applied to provide
service to federal lands, as the demand for Cellular service has
increased in areas such as national parks. We believe that permitting
the exclusion of lands that are already being served as part of a
Cellular licensee's CGSA would provide inaccurate results as to which
markets are in fact Substantially Licensed for purposes of inclusion in
the appropriate transition stage.
21. Through our proposed transition, an Overlay Licensee would not
only have the flexibility to extend service into currently Unserved
Area, but also would be able to do so without filing modification
applications, with limited exceptions. In addition, in the event that
all or a portion of an incumbent's CGSA is relinquished by that
incumbent (e.g., through license cancellation, reduction in CGSA,
permanent discontinuance of operations, or failure to renew a license),
the Overlay Licensee of that CMA Block would no longer be required to
protect the relinquished area and could immediately provide service on
a primary basis in that area (sometimes known among industry
stakeholders as ``reversionary rights''). We believe that auctioning,
instead, only the remaining Unserved Area in a particular Block without
overlay licensing rights could result in incumbents' relinquished areas
being held in the Commission's auction inventory and only accessible
via a future auction. In contrast, our Overlay License proposal will
facilitate prompt service to such areas through reduced administrative
burdens.
22. Under our proposal, just as incumbents that do not become
Overlay Licensees would be assured continued protection from harmful
interference within their CGSA footprint as of an established cut-off
date, they would in turn be obligated to protect the Overlay Licensees
from harmful interference. Non-Overlay licensees' CGSA boundaries would
be permanently fixed, insofar as such licensees would not be permitted
to expand their CGSAs in Blocks included in the auction, except through
contractual arrangements with other licensees. To foster secondary
market transactions, we propose to continue to allow licensees to
partition their CGSAs and/or disaggregate their authorized spectrum, as
well as enter into leasing arrangements. We seek comment on this
proposal. Non-overlay licensees will also be free to modify their
systems in response to market demands without Commission filings, so
long as the CGSA would not be expanded (other than through contractual
arrangements) or reduced as a result, and subject to any obligations
imposed on all licensees. (For example, certain other filings, such as
administrative updates, license renewals, and filings required under
the rules implementing the National Environmental Policy Act of 1969,
as amended (NEPA) would still be required for all licensees.)
23. We recognize that in Substantially Licensed markets included in
our Stage I transition, the new Overlay Licenses awarded in the auction
will be heavily encumbered by the incumbents, whose CGSAs would
continue to be entitled to protection from harmful interference. A
prospective Overlay Licensee would therefore need to be familiar with
incumbent operations and should take care to understand how such
operations may affect its ability to execute its business plan. Under
delegated authority, the Bureau will determine, prior to conducting the
auctions, what procedures (if any) are warranted to resolve
discrepancies and other anomalies in the licensing data in order to
establish definitive boundaries of existing authorized CGSAs as of
certain cut-off dates. The Bureau will also issue the appropriate
Public Notice(s) regarding such procedures. We recognize that, in some
Blocks, the remaining Unserved Area as of the auction date may be very
small, fragmented, and/or not immediately servable.
[[Page 15670]]
2. Interim Operating Authority Block (Chambers, Texas, Block A--CMA
672A)
24. Chambers, Texas, Block A (Chambers) is the only Block for which
a Cellular license has never been issued. AT&T Mobility of Galveston
LLC (AT&T Galveston) holds an interim operating authorization and
provides Cellular service to nearly all of the area in this Block under
Call Sign KNKP971. Notably, neither AT&T nor any other commenter has
mentioned this unlicensed market thus far in this proceeding. We
propose that Chambers be licensed on a geographic area (CMA Block)
basis and that it be included in Stage I described above.
25. For Chambers, we propose not to apply our existing rules
concerning the various build-out and application phases that have been
applicable to other Cellular markets. For example, we propose not to
subject Chambers to the Phase I or Phase II licensing processes (and
because Phase I has terminated for all other CMA Blocks, we are
proposing to delete the provisions that address Phase I applications,
and references thereto, throughout the part 22 subpart H rules and
applicable part 1 rules). As no primary license has ever been issued
for Chambers, the initial five-year build-out period that is described
in Sec. 22.947 of our rules has never commenced. We propose not to
apply to Chambers this five-year build-out period (and because it has
expired for all other CMA Blocks, we are proposing to delete the
provisions that address the five-year period, and references thereto,
throughout the part 22 subpart H rules and applicable part 1 rules).
Consistent with our treatment of newly authorized markets in the 700
MHz proceeding, we propose that the Overlay License for Chambers will
terminate automatically if the licensee fails to provide signal
coverage and offer service over at least 35 percent of the geographic
area of its license authorization within four years of initial license
grant and to at least 70 percent of the geographic area of its license
authorization by the end of the license term. We further propose that,
after the build-out requirement has been met, the Chambers Overlay
Licensee should be subject to the same rules and obligations that we
apply to those that are awarded the Overlay Licenses for all
Substantially Licensed Blocks. AT&T Galveston does not have primary
authority to operate and would not be afforded incumbent status with
respect to any Overlay Licensee resulting from our proposed competitive
bidding process.
26. We believe this proposal provides the most efficient and
effective means to foster the provision of additional advanced wireless
service by a primary licensee to this Texas market. We also believe
that our proposed performance obligations are appropriate given the
increased regulatory flexibility afforded any Chambers Overlay Licensee
under our transition proposal, including the ability to modify system
parameters and expand service without application filings in most
instances. In short, we believe that our proposal serves the public
interest, and we seek comment on all aspects of the proposal, including
any foreseeable costs. Commenters that oppose our proposed approach for
Chambers should offer a detailed alternative proposal that is
consistent with the goals of this proceeding and the Commission's
policies as set forth herein, as well as an analysis of the costs and
benefits of the alternative proposal.
B. Stage II Transition
27. As stated above, based on our preliminary data, approximately
20 percent of all CMA Blocks currently do not meet either of the two
benchmarks of our proposed Substantially Licensed test. We believe that
the public interest is best served by retaining the existing site-based
licensing scheme in these Blocks--primarily Alaska and rural areas out
west--to preserve direct access to such area through the Commission's
Unserved Area application process during a defined transition period.
The reduction in administrative burdens identified above for Stage I
markets is substantially smaller for these Blocks that are less built
out and have relatively more Unserved Area remaining. In rural areas,
service tends to become economically feasible gradually, and
modification and new-system applications are filed to a much lesser
extent than modification applications in the Blocks that are already
substantially built out. Our proposal will allow all interested
parties, including new entrants, the opportunity to identify the
specific areas they wish to serve as service becomes economically
feasible in such markets due to changing demographics, technologies, or
other factors. Under our current site-based rules, the one-year
construction requirement will ensure prompt build-out of areas in these
Blocks where licensees seek authorization to provide service.
28. We recognize the public interest benefits of having all CMA
Blocks under a single geographic area licensing scheme, and therefore
we propose to retain the site-based licensing model only for a defined
period. Specifically, we propose to continue this model for a period of
seven years from the date on which revised Cellular Service rules take
effect in this proceeding (Effective Date). We seek comment on our
Stage II proposal and specifically on our proposed seven-year
transitional time period. While we wish to effectuate prompt build-out
in the CMA Blocks that do not currently meet the Substantially Licensed
test, we recognize that certain markets may present increased
challenges to widespread deployment in the near term. We seek comment
on whether seven years is the appropriate timeframe that takes into
account the goal of ensuring prompt build-out of systems and economic
forces that might delay deployment in certain markets or any alternate
proposals commenters may have. We also ask that commenters address the
costs and benefits of a seven-year transition period, or for any
alternate proposals set forth.
29. Possible Exception for Alaska. It is likely to be many years
before the Alaskan CMA Blocks are substantially built out. We seek
comment on whether we should simply retain the status quo site-based
scheme for Alaska indefinitely, rather than including it with other
Blocks in Stage II. Even if we include Alaska in the proposed
transition in Stage II, we seek comment on whether it is appropriate to
revise the one-year build-out requirement for Alaska so long as it
remains subject to site-based licensing. In addressing these issues, we
also seek feedback on the costs and benefits of including Alaska in the
Stage II transition, as well as revision to the one-year build-out
requirement.
30. Possible Other Exceptions. We seek comment on whether public
interest considerations warrant any exception that we have not
considered, e.g., an especially challenging rural market that might
require, for example, an extended build-out period, or another kind of
exception altogether. Commenters proposing an exception should include
details and supporting rationale consistent with the goals of this
proceeding and the Commission's policies as set forth herein.
C. Performance Requirements
31. We are mindful of our statutory obligation and overarching
policy goal of ensuring that the spectrum is used effectively and
efficiently to provide valuable services to the American public,
including those residing in rural areas, and that the spectrum not be
warehoused when it could be deployed using new technologies and
services.
[[Page 15671]]
We also recognize that the Cellular Service has, in most CMAs across
the country, already resulted in significant levels of system
deployment during the past few decades. Indeed, the level of build-out
far exceeds even the most stringent geographic-based construction
benchmarks the Commission has imposed on any wireless service to foster
public interest goals. In the markets not Substantially Licensed--20
percent of the CMA Blocks--the current level of build-out varies
significantly, as discussed above, with most above 70 percent
geographic coverage, and a few below 10 percent geographic coverage
(e.g., certain Alaskan CMA Blocks), with the rest somewhere in between.
32. We seek comment on whether we should adopt any performance
benchmarks for Overlay Licenses to promote build-out in areas covered
by these licenses where spectrum is unused and the costs and benefits
of doing so. If we decide to adopt performance benchmarks, what would
the measures be? Would it be appropriate to establish build-out
requirements that vary depending on the amount of Unserved Area
remaining, or for CMA Blocks that face particular construction
challenges (e.g., Alaska)? In seeking comment, we note that the
Commission has never established performance requirements in similar
services mandating 100 percent build-out of all areas or population
centers in a geographic-based license.
33. We also seek comment on whether, in place of or in addition to
performance build-out requirements, we should require an Overlay
Licensee to make unused spectrum available in the secondary market to
entities that have need for it. Specifically, we request comment on
various possible approaches for facilitating secondary market
transactions for use of spectrum that the Overlay Licensee is not using
or may not be inclined to use. As one possible approach, we seek
comment on whether Overlay Licensees that continue to hold unused
spectrum after a certain period of time should be required to make that
information publicly available, in some readily accessible and
transparent fashion, so that any party interested in using that
spectrum can more easily seek to take advantage of the opportunity to
gain access to the spectrum. If we were to require the licensee to
provide information on unused spectrum, how should this information be
made publicly available? We also seek comment on the possible costs and
benefits of pursuing this secondary market transparency approach.
34. As another possible approach, should Overlay Licensees be
required to participate in good faith negotiations with a party
expressing an interest in spectrum leasing, partitioning, or
disaggregating spectrum in a CMA Block? Or, should we consider a
modified version of negotiation methodologies employed in other
wireless services, possibly involving phases of voluntary negotiations,
followed by mandatory negotiations? What are the relative benefits and
costs to such an approach in the context of Overlay Licenses?
35. In considering various approaches, we request that commenters
address any difficulties they may have experienced when seeking to
access unused spectrum in secondary markets transactions that could
inform our decision-making and could improve the workings of secondary
markets with respect to unused spectrum associated with Overlay
Licenses. Finally, we seek comment on any other approach that
commenters may suggest that could facilitate secondary market
transactions that help ensure that valuable spectrum resources do not
needlessly lie fallow.
D. Competitive Bidding Procedures
36. As stated above, consistent with the Commission's approach in
prior transitions of other services from site-based to geographic area-
based overlay licensing, we believe that it serves the public interest
to accept competing, mutually exclusive applications in our proposed
transition of Cellular licensing that will be resolved by competitive
bidding. We reiterate that we are interested in reducing regulatory
burdens and affording increased system flexibility (including
deployment of broadband service) within fixed boundaries for Cellular
licensees, but in a manner that is consistent with Commission precedent
and spectrum management policies. No commenter has offered a
justification for departing from a transition approach under which we
accept mutually exclusive applications. Competitive bidding should
place Cellular Overlay Licenses in the hands of those that value them
most.
37. In other competing commercial wireless services, the Commission
implemented geographic-based licensing, rather than a site-based model,
from the inception of the radio service, particularly in PCS, the
Advanced Wireless Service (AWS), and the 700 MHz Service. In these
radio services, the existing incumbents (e.g., microwave, government,
and broadcasters) were to be relocated. In other commercial wireless
services where incumbents were originally licensed on a site-by-site
basis but were permitted to remain in the band, the Commission also
chose to transition to geographic-based overlay licensing including,
for example, the 800 MHz specialized mobile radio service, the 220 MHz
private land mobile radio service, and the 929-931 MHz paging services.
In each instance, the Commission determined that the geographic-area
licensing model afforded licensees increased flexibility to construct
and operate facilities within a larger geographic area and commence
operations without prior Commission approval, thereby reducing
regulatory burdens.
38. In the event we adopt our proposal for a transition entailing
competitive bidding, we propose to apply the general competitive
bidding rules set forth in part 1, subpart Q of the Commission's rules,
substantially consistent with the bidding procedures that have been
employed in previous auctions. Specifically, we propose to employ the
Part 1 rules governing competitive bidding design, designated entity
preferences, unjust enrichment, application and payment procedures,
reporting requirements, and the prohibition on certain communications
between auction applicants. Under this proposal, such rules would be
subject to any modifications that the Commission may adopt in the
future. In addition, consistent with our long-standing approach,
auction-specific matters such as the competitive bidding design and
mechanisms, as well as minimum opening bids and/or reserve prices,
would be determined by the Bureau pursuant to its delegated authority.
We invite comment on this proposal. In particular, we request comment
on whether any of our part 1 competitive bidding rules or other auction
procedures would be inappropriate or should be modified for an auction
of Cellular licenses in the context of this proceeding.
39. Provisions for Designated Entities. In authorizing the
Commission to use competitive bidding, Congress mandated that the
Commission ``ensure that small businesses, rural telephone companies,
and businesses owned by members of minority groups and women are given
the opportunity to participate in the provision of spectrum-based
services.'' In addition, section 309(j)(3)(B) of the Act provides that,
in establishing eligibility criteria and bidding methodologies, the
Commission shall promote ``economic opportunity and competition . . .
by avoiding excessive concentration of licenses and by disseminating
licenses among a wide
[[Page 15672]]
variety of applicants, including small businesses, rural telephone
companies, and businesses owned by members of minority groups and
women.'' One of the principal means by which the Commission fulfills
these mandates is through the award of bidding credits to small
businesses. The Commission's experience with numerous auctions has
demonstrated that bidding credits for designated entities afford such
entities substantial opportunity to compete with larger businesses for
spectrum licenses and provide spectrum-based services.
40. The Commission has stated that it would define eligibility
requirements for small businesses on a service-specific basis, taking
into account the capital requirements and other characteristics of each
particular service in establishing the appropriate threshold. Although
it has standardized many of its auction rules, the Commission has
determined that it will continue a service-by-service approach to
defining small businesses.
41. We propose to employ the following three small business
definitions for auctions of these licenses. We seek comment on whether
we should define an entrepreneur as an entity with average gross
revenues for the preceding three years not exceeding $40 million, a
small business as an entity with average gross revenues for the
preceding three years not exceeding $15 million, and a very small
business as an entity with average gross revenues for the preceding
three years not exceeding $3 million. As provided in Sec. 1.2110(f)(2)
of our rules, we seek comment on whether we should offer entrepreneurs
a bidding credit of 15 percent, small businesses a bidding credit of 25
percent, and very small businesses a bidding credit of 35 percent.
Commenters are encouraged to provide feedback on the costs and benefits
of these proposed definitions and bidding credit designations. We also
invite input on whether alternative size standards should be
established in light of the particular circumstances or requirements
that may apply to the proposed Cellular Overlay Licenses. Commenters
advocating alternatives should explain the basis for their proposed
alternatives, including whether anything about the characteristics or
capital requirements of providing Cellular service or other
considerations require a different approach, as well as the costs and
benefits of the alternatives.
E. Gulf of Mexico Service Area
42. Cellular service in the Gulf of Mexico Service Area (GMSA) (CMA
Blocks 306A and 306B) is subject to special licensing rules. The GMSA
is divided by rule into two zones: the Coastal Zone (GMCZ) in the
Eastern Gulf region and the Exclusive Zone (GMEZ). The existing
Cellular licensing regime for the GMSA was carefully developed by the
Commission after taking into account many prior disputes between Gulf-
based and adjacent land-based carriers, multiple prior Commission
decisions, court litigation and judicial rulings, as well as the unique
circumstances of providing Cellular service in the Gulf region. We
propose not to alter the existing regime, except that we propose to
subject GMSA licensees to our proposed field strength limit, discussed
below. We also believe that GMSA licensees may benefit from certain
other rule changes proposed in the NPRM. We seek comment on our
proposed exemption of the GMSA from a Cellular licensing transition at
this time, including comment on which (if any) individual rule changes
should be applied to GMSA licensees.
F. Signal Field Strength Limit Proposal
43. The Commission believes that a median field strength limit of
40 dB[mu]V/m is appropriate for the Cellular Service and proposes that
all Cellular licensees be subject to this limit in all CMA Blocks. With
an established field strength limit applicable to all Cellular
licensees, the current rule governing Service Area Boundary (SAB)
extensions (see 47 CFR 22.912) would be unnecessary, even in those CMA
Blocks that remain subject to the current site-based licensing rules
for Unserved Area. In the latter class of CMA Blocks, however, SABs and
CGSAs (for new systems and expansions of existing systems) would still
be calculated under the provisions currently set forth in Sec. 22.911.
We seek comment on our proposal.
44. An appropriate field strength limit allows a licensee to
transmit at a signal strength sufficient to provide reliable service
right up to the license boundary, while preventing the licensee from
transmitting at a signal strength that is excessive for that purpose.
Having a 47 dB[mu]V/m field strength limit for PCS, for example, has
worked effectively as a limit on the amount of signal incursion a
licensee may have into an adjacent licensed area, and we believe that a
40 dB[mu]V/m field strength limit will be similarly effective for the
Cellular Service. We do not anticipate a notable increase in boundary
disputes if we adopt our proposal. There is no evidence of a causal
relationship between boundary disputes and a field strength limit if
the limit applies equally to all licensees in a given service.
45. We believe that co-channel licensees are in the best position
to negotiate placement and parameters of facilities near the boundary
of another licensee's protected area, taking into account the factors
unique to their systems and the area involved, including, for example,
technologies, traffic loading, topography, and location of major roads.
Thus, consistent with the PCS field strength limit rules, we also
propose to allow Cellular licensees to negotiate contractual agreements
specifying field strength limits different from the limit established
by rule. We emphasize, however, that Commission rules do not allow
licensees to agree to transmit their signals at a power level that is
higher than the applicable power limit set forth in the rules.
46. Even with full compliance with the proposed field strength
limit, licensees operating in proximity to each other will still need
to coordinate channel usage in order to avoid mutually destructive
interference. Section 22.907 of our rules requires that interference
problems (and any possible problems with traffic capture) in the
Cellular Service be avoided by coordination between or among licensees.
We propose to retain the requirements for mandatory coordination that
are currently set forth in Sec. 22.907.
47. We encourage parties to address all aspects of our proposal
concerning a field strength limit and continued mandatory licensee
coordination. Interested parties that offer a counter-proposal, whether
for a different field strength limit or non-use of any signal field
strength limit, should be specific and explain how their proposal
better serves the public interest, including whether it would be more
cost effective.
G. Other Alternatives to the Commission's Proposed Transition
48. Single-stage Transition for All Blocks. We seek comment on the
possibility of eliminating the site-based licensing scheme and
transitioning expeditiously, via a single auction, all CMA Blocks to a
geographic-based model. Commenters should address the impact of such a
proposal on rural service and rural interests in particular, given that
once an Overlay License is offered at auction, the Unserved Area in
that particular Block would no longer be available under site-based
licensing, even if the Overlay License returns to the Commission for
re-licensing. For example, if there is no successful bidder at auction,
or if a successful bidder is awarded the Overlay License but then,
years later, fails to renew, the only methodology for re-licensing is
to offer
[[Page 15673]]
the Overlay License again at a subsequent Commission auction. We seek
comment on these considerations under this alternate approach.
49. A Three-Stage Transition. As another alternative, we could
subdivide the Blocks that do not now meet the Substantially Licensed
test into two groups, as there may be some markets that need even more
time, such as those in Alaska and other very rural areas with similar
construction challenges, resulting in a third stage in the Cellular
licensing transition. We seek specific comment on this approach as
well. For example, what benchmarks should be used to distinguish the
Stage II Blocks from the Stage III Blocks, and what is the basis for
choosing such benchmarks? What would be an appropriate dividing line in
terms of licensed area? What should the trigger dates be for Stage II
and Stage III, and what would be the rationale? We also seek comment on
whether all Blocks with unique construction challenges should be
subject to an extended build-out requirement while they remain under
the site-based licensing regime.
50. Other Alternatives. We also welcome submission of alternatives
that we have not considered herein. Commenters who oppose our two-stage
proposal and advocate an alternative need to address details of
implementation and should demonstrate how their alternative serves the
public interest and is cost effective.
H. Proposed Amendments to Rules and Possible Rule Relocation
1. Proposed Amendments
51. Transition-related proposed amendments. Proposed new and
revised rules to reflect the proposed two-stage transition of Cellular
licensing are set forth in Appendix E of the NPRM and Order. We urge
all parties to review Appendix E closely and submit detailed comments.
Our proposals introduce some new terminology, including for incumbent
operations, and we also propose revisions and some deletions regarding
the definitions in Sec. 22.99.
52. Other Deletions and Updates. Although we are not proposing
immediate fundamental changes to the rules for CMA Blocks that are not
to be included in the Stage I transition (except for the proposed
establishment of a signal field strength limit), we have reviewed all
the subpart H rules as well as certain part 1 rules applicable to
Cellular licensing in an effort to streamline or update them, and we
propose certain changes. We have also reviewed these rules to determine
whether any should be deleted as obsolete or, going forward, no longer
necessary. For example, we believe that certain items required under
Sec. Sec. 22.929 and 22.953(a) of our rules will no longer be
routinely of interest to the Commission's engineering staff in their
review of Cellular applications in the future, and accordingly, we
propose to streamline these requirements in a revised Sec. 22.953 (and
a corresponding deletion of Sec. 22.929). In addition, we discuss
below a proposal regarding Sec. 22.901(b). The results of our review
are reflected in the proposed rules set forth in Appendix E of the NPRM
and Order. We invite all commenters to review each of the proposed
revisions, additions, and deletions and comment on them with
specificity. If there are other rules that commenters believe should be
revised, deleted or added as part of our effort to streamline and
update the rules that govern Cellular licensees, we welcome suggestions
regarding such revisions. Commenters should be specific in their
proposals, providing proposed language for the rule itself as well as
the rationale for the change.
53. AMPS Sunset Certifications: Termination of Collection; Deletion
of Section 22.901(b). On June 15, 2007, the Commission released an
Order declining to extend the sunset of the Cellular analog service
requirement set forth in Sec. 22.901(b) of our rules. See 22 FCC Rcd
11243 (2007). Pursuant to such 2007 AMPS Sunset Order, on November 16,
2007, the Bureau released a Public Notice (see 22 FCC Rcd 19922 (WTB
2007)) with instructions for Cellular licensees on how to file a one-
time Cellular Coverage Certification (AMPS Sunset Certification), which
would certify that discontinuance of analog service would not result in
any loss of wireless coverage throughout the CGSA. By filing an AMPS
Sunset Certification, licensees could preserve the rights associated
with their previously determined CGSAs on file with the Commission as
of the AMPS Sunset Certification's filing date. The overwhelming
majority of Cellular licensees have opted to file an AMPS Sunset
Certification. We believe that all Cellular licensees have had ample
time--more than four years since the AMPS Instructions Notice--to make
their choice and file either the one-time AMPS Sunset Certification or
the appropriate revised CGSA showing. Accordingly, we propose to
terminate the Commission's collection of such Certifications and to
delete Sec. 22.901(b). We welcome comment on these proposals.
2. Possible Relocation of Part 22 Cellular and Part 24 PCS Rules to
Part 27
54. In light of our proposal to revise the Cellular licensing rules
to bring them in line with the more flexible rules that govern other
wireless services, we take this opportunity to invite comment on
placement of revised rules that may ultimately be adopted in this
proceeding. Specifically, in the event that we adopt a geographic area
regime that includes Overlay Licenses, should the new Cellular rules be
incorporated into part 27, which houses the existing rules for certain
other flexible wireless services, such as AWS, rather than in subpart H
of part 22? If the revised Cellular rules are to be incorporated into
part 27, we believe that the rules for part 24 PCS--which is already a
flexible service governed by geographic area-based licensing--should
then also be moved into part 27. Should the Commission initiate a
separate rulemaking to revise the part 27 rules and reserve the
possible relocation of Cellular and PCS rules to that separate
proceeding? We welcome comment on such relocations and the optimal
timing for them.
3. Proposed Correction of Section 1.958(d)
55. We take this opportunity to propose correction of a clerical
error in the distance computation formula in Sec. 1.958(d) of our
rules. The error was introduced in the process of moving the provision
containing the formula from part 22 (Sec. 22.157) to subpart F of part
1. The proposed correction is included in Appendix E of the NPRM and
Order.
IV. Order
56. To facilitate the orderly and effective resolution of the
fundamental changes and issues raised in the NPRM, and consistent with
our actions in numerous prior proceedings, the Commission adopts a
companion Order on February 15, 2012 in which it imposes an immediate
freeze on the acceptance of certain Cellular applications in certain
markets, as explained below, and imposes other interim procedures for
certain Cellular applications, as also explained below. The
Commission's decision to impose a freeze and other interim procedures
is procedural and therefore not subject to the notice and comment or
effective date requirements of the Administrative Procedure Act. (See 5
U.S.C. 553(b)(A), (d). See also, e.g., Bachow Communications, Inc. v.
FCC, 237 F.3d 683 (D.C. Cir. 2001)). The tailored freeze and other
interim procedures are
[[Page 15674]]
effective as of February 15, 2012 until further notice.
A. Suspension of Certain Filings
57. Rather than imposing a freeze on all modification and new-
system applications, the Commission has tailored the freeze in this
proceeding to: (1) provide for the continued expansion of service to
consumers during the pendency of this proceeding; and (2) help the
Commission identify Unserved Area and inform potential bidders of
encumbrances well in advance of the auction. A tailored freeze will
facilitate much needed network changes. We conclude that the benefits
described above outweigh the limited potential costs of this tailored
freeze.
58. As of the Adoption Date (February 15, 2012) and until further
notice, we have suspended acceptance of certain Cellular applications
claiming Unserved Area in ``Covered'' CMA Blocks. We wish to allow
licensees to continue limited expansion of existing systems necessary
to respond to customer needs by addressing technical changes at the
periphery of their current CGSAs without facing strike applications,
i.e., applications filed primarily to block such service during a
transition to geographic area licensing. Moreover, accepting and
processing all applications in the normal course under our current
rules would arguably be inconsistent with our goal of changing to a
less burdensome licensing system.
59. Covered Blocks include: (i) Those we preliminarily determine to
be Substantially Licensed under either benchmark of our proposed test
(listed in Appendix C of the NPRM and Order); and (ii) those we
preliminarily determine to be more than 90 percent but less than 95
percent licensed (listed in Appendix F of the NPRM and Order). In
Covered Blocks, we prohibit the filing of applications for: (a) new-
system Cellular licenses; and (b) major modifications to expand
existing systems if claiming Unserved Area that is not contiguous to
the existing CGSA. The prohibition applies even if a portion of the
area to be claimed as CGSA lies in a non-Covered Block. Thus, for
example, if a proposed new-system or major modification application
proposes to claim (as CGSA) Unserved Area that straddles a CMA
boundary, where the CMA Block on one side of the boundary is Covered
while the Block on the other side of the boundary is non-Covered, the
entire application will be treated as if solely for Unserved Area in a
Covered Block. Any applications prohibited under the Order that are
received on or after the Adoption Date are to be dismissed by the
Bureau as unacceptable for filing.
60. We are permitting major modification applications that propose
CGSA expansion in, or into, Covered Blocks only if claiming Unserved
Area that is contiguous to the existing CGSA. (If an application
proposes to claim (as CGSA) contiguous Unserved Area that is partially
in a Covered Block and partially in a non-Covered Block, the
application will be treated as if the entire claimed area is in a
Covered Block.) Also, as of the Adoption Date and until further notice,
we are using a ``same-day filing group'' for purposes of determining
mutual exclusivity of permissible Cellular applications that entail
Unserved Area in Covered Blocks. We will dismiss any mutually exclusive
applications claiming Unserved Area in Covered Blocks that are received
on or after the Adoption Date rather than conduct closed auctions to
resolve such applications. We will permit major amendments to
permissible major modification applications only so long as the
proposed CGSA expansion in the amendment is claiming Unserved Area that
is contiguous to the existing licensed CGSA. (If the amendment proposes
to claim (as CGSA) contiguous Unserved Area that is partially in a
Covered Block and partially in a non-Covered Block, it will be treated
as if the entire claimed area is in a Covered Block.) Also, for such
major amendments filed on or after the Adoption Date and until further
notice, we will use a ``same-day filing group'' for purposes of
determining mutual exclusivity, and we will dismiss any such mutually
exclusive major amendments rather than conduct closed auctions to
resolve them.
61. These interim filing procedures do not affect applications
claiming Unserved Area solely in non-Covered CMA Blocks, which we will
continue to accept and process under current rules and procedures, nor
do they affect any applications that do not propose a new Cellular
system or a CGSA expansion (e.g., renewals, transfers, assignments,
modifications that do not extend a CGSA boundary, administrative
updates, and required notifications), no matter the Block. Applications
for renewal must comply with any applicable provisions of the Notice of
Proposed Rulemaking released by the Commission in the Wireless Radio
Services (WRS) proceeding in May 2010. (See generally WRS NPRM, 25 FCC
Rcd 6996 (2010). See also 47 CFR 1.939.) We advise all parties,
however, that although minor modification applications (regardless of
market) are not affected by the freeze imposed under this Order, we
know from experience that staff might find on review that a purported
minor modification application submitted on or after the Adoption Date
is in fact a major modification application. If such an application is
for Unserved Area (in whole or in part) in a Covered CMA Block, the
application will be subject to the same procedures and restrictions
described above (including dismissal if an impermissible filing under
this Order).
62. In the following Section B, we discuss how we will process
currently pending new-system and CGSA-expansion applications in Covered
CMA Blocks.
B. Currently Pending Non-Mutually Exclusive Applications in Covered CMA
Blocks
63. New-System and Major Modification Applications. Currently
pending applications (i.e., filed prior to the Adoption Date) that
propose either a new Cellular system or a modification that would
expand an existing system's CGSA boundary in, or into, Covered CMA
Blocks fall into one of two categories: (1) Those accepted for filing
and placed on public notice at least 30 days before the Adoption Date;
and (2) those for which the 30-day public comment period has not yet
expired as of the Adoption Date. We will treat non-mutually exclusive
applications in the first category (including pending applications that
would be impermissible under this Order if filed on or after the
Adoption Date) under existing rules and will process them in the normal
course as expeditiously as possible, subject to certain interim
procedures regarding major amendments. Specifically, for pending
modification applications proposing expansion of an existing CGSA, we
will permit major amendments on or after the Adoption Date subject to
the same interim procedures described above in Section IV.A. For
pending new-system applications, we will permit major amendments on or
after the Adoption Date only so long as the proposed new-system CGSA in
the amendment is claiming Unserved Area that is contiguous to the CGSA
proposed in the application that was pending as of the Adoption Date.
(If an application proposes to claim (as CGSA) contiguous Unserved Area
that is partially in a Covered Block and partially in a non-Covered
Block, the application will be treated as if the entire claimed area is
in a Covered Block.) For such amendments, we will use a ``same-day
filing group'' for purposes of determining mutual exclusivity, and we
[[Page 15675]]
will dismiss any such mutually exclusive major amendments claiming
Unserved Area in Covered Blocks that are received on or after the
Adoption Date rather than conduct closed auctions to resolve them. On
balance, rather than holding them in abeyance until conclusion of this
proceeding, we concluded that processing pending applications in the
first category under existing rules, subject to the interim procedures
described herein, will not sacrifice the goals we seek to accomplish in
this proceeding.
64. Pending new-system and major modification applications in the
second category (i.e., filed prior to the Adoption Date but for which
the 30-day comment period has not expired) claiming any Unserved Area
in Covered CMA Blocks will be deemed mutually exclusive only if a
competing application was filed prior to the adoption date of the
Order. Applications in the second category that are not mutually
exclusive will be processed under our current rules, except that we
will only permit the filing of major amendments subject to the same
interim procedures described above regarding major amendments to
applications in the first category.
65. Minor Modifications. As explained above, applications submitted
as minor modifications of an existing CGSA are sometimes found by staff
to be major modification applications. During the pendency of this
proceeding, a minor modification application submitted prior to the
Adoption Date that is determined to be proposing a major modification
claiming (as CGSA) Unserved Area in a Covered Block will be treated the
same as a pending major modification application in accordance with the
interim procedures described above.
V. Procedural Matters
A. Ex Parte Rules--Permit-But-Disclose
66. The proceeding that the NPRM initiates shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine Period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b). In proceedings governed by
Sec. 1.49(f) or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
B. Comment Period and Procedures
67. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, interested parties may file comments and reply comments on or
before the dates indicated on the first page of this document. All
comments and reply comments should refer to WT Docket No. 12-40.
Comments may be filed using the Commission's Electronic Comment Filing
System (ECFS).
[ssquf] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing.
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.
[ssquf] 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 and boxes must be disposed of before
entering the building.
[ssquf] 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.
[ssquf] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street SW., Washington DC 20554.
68. People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Initial Regulatory Flexibility Analysis of the Notice of Proposed
Rulemaking and Order
69. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this 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 filed by the same dates as listed on the first
page of the NPRM and must have a separate and distinct heading
designating them as responses to this IRFA. The Commission will send a
copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA). In addition, the
NPRM and IRFA (or summaries thereof) will be published in the Federal
Register.
Need for, and Objectives of, the Proposed Rules
70. In the NPRM, the Commission proposes a transition for the 800
MHz Cellular (Cellular) Service from site-based licensing to
geographic-area licensing. The proposed transition would occur in two
stages, via Commission auction. We believe that the current site-based
paradigm is outdated and hinders carriers from being able to respond
quickly to changing market conditions and consumer demands. We also
believe it is contrary to the public interest to maintain a burdensome
system to preserve extremely limited Unserved Area licensing
opportunities. The Commission's early key goal of creating a seamless
and integrated nationwide Cellular Service has been achieved throughout
the vast majority of our nation. The Commission has long held that
market-based licensing regimes are
[[Page 15676]]
simpler to administer for all parties concerned. The proposed
transition would reduce administrative burdens for licensees as well as
Commission staff. The proposed transition is consistent with the
Commission's ongoing regulatory reform agenda and also supports the
Commission's Data Innovation Initiative, launched in June 2010, by
reducing information collection burdens under the Paperwork Reduction
Act. We anticipate that, with the proposed additional flexibility
provided to licensees, the regulatory and compliance costs associated
with service provision would be reduced. These changes would also put
Cellular licensees more on par with other wireless telecommunications
licensees and further the Commission's goal of rule harmonization for
the different wireless services.
71. As detailed in Section III, we propose a transition in two
stages. Consistent with precedent, we would accept competing
applications for Overlay Licenses, and resolve them via auction, for
each CMA Block. In Stage I, the Commission would offer Overlay Licenses
for all CMA Blocks that are ``Substantially Licensed'' or authorized
solely under interim operating authority (IOA). We propose the
following test to determine if a CMA Block is Substantially Licensed:
either (1) at least 95 percent of the total land area in the CMA Block
is licensed; or (2) there is no parcel within the Block at least 50
contiguous square miles in size that is not licensed. We believe it is
appropriate to include total land area without exclusions in
calculating the licensed area. If a CMA Block meets either benchmark as
of an established date, it would be deemed Substantially Licensed and
included in the Stage I transition. We propose, however, that the Gulf
of Mexico Service Area (GMSA) be exempt from the transition because it
is governed by a specialized licensing regime.
72. All CMA Blocks that do not meet the Substantially Licensed test
would remain under site-based licensing until Stage II is triggered. In
Stage II, the Commission proposes to offer Overlay Licenses for all
remaining CMA Blocks (except the GMSA), regardless of the percentage of
total land area licensed, and terminate site-based licensing. In the
NPRM, we propose to continue the site-based model for seven years
before Stage II is triggered, and we seek comment on whether this is
the appropriate period of time. We believe that the public interest is
best served by preserving the current scheme's direct spectrum access
through site-based applications in Blocks that are not yet
Substantially Licensed, primarily rural areas out west, for a defined
period of time. This will allow all interested parties to have the
opportunity to identify the specific areas they wish to serve as
demographics change or service otherwise becomes economically feasible
in such markets. Moreover, site-based licensing in such Blocks will
ensure build-out within one year of authorization of such areas.
73. Overlay Licensees would be obligated to protect incumbent
licensees' operations from harmful interference. That obligation would
cease with respect to any incumbent's licensed area relinquished for
any reason in the future (e.g., through failure to renew the license).
Such relinquished areas would not be returned to the Commission's
auction inventory but, rather, could by served immediately by the
Overlay Licensee on a primary basis without being subject to
competitive bidding.
74. The Chambers, Texas Block-A market (Chambers) is the only CMA
Block for which a license has never been issued; the market is served
solely under IOA. We propose to include Chambers in the Stage I auction
and award an Overlay License consistent with the process described for
the Substantially Licensed Blocks, but subject to specific build-out
requirements for the Chambers Overlay Licensee, as explained in Section
III.A.2. We believe this is the most efficient and effective way to
resolve the continued lack of a licensee and help bring additional
advanced service to this Texas market.
75. We also propose that all Cellular licensees, regardless of
Block, should be subject to a field strength limit at their respective
license boundaries, similar to licensees in other flexible services
such as PCS, certain AWS, etc. The NPRM proposes a median field
strength limit of 40 dB[mu]V/m for the Cellular Service. We also
propose certain other revisions in individual Cellular rules to reflect
the proposed transition, and to delete provisions that we deem obsolete
or unnecessary going forward, including certain application
requirements and other filings, and to streamline certain other
provisions. The proposed rules are set forth in Appendix E and we
encourage all interested parties to review them carefully. We seek
comment on how the proposals will impact the amount of information
available to regulated entities and the public.
Legal Basis
76. The proposed action is taken under sections 1, 2, 4(i), 301,
303, 307, 309, 319, 324, and 332 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i), 301, 303, 307, 309, 319, 324, and
332.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
77. 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.
78. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our action may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three comprehensive, statutory small entity size standards.
First, nationwide, there are a total of approximately 27.5 million
small businesses, according to the SBA. In addition, a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
Nationwide, as of 2007, there were approximately 1,621,315 small
organizations. Finally, the term ``small governmental jurisdiction'' is
defined generally as ``governments of cities, towns, townships,
villages, school districts, or special districts, with a population of
less than fifty thousand.'' Census Bureau data for 2011 indicate that
there were 89,476 local governmental jurisdictions in the United
States. We estimate that, of this total, as many as 88,506 entities may
qualify as ``small governmental jurisdictions.'' Thus, we estimate that
most governmental jurisdictions are small.
79. Wireless Telecommunications Carriers (except Satellite). The
appropriate size standard under SBA rules is for the category Wireless
Telecommunications Carriers. The size standard for that category is
that a business is small if it has 1,500 or fewer employees. Census
Bureau data for 2007, which now supersede data from the 2002 Census,
show that there were 3,188 firms in this category that operated for the
entire year. Of this
[[Page 15677]]
total, 3,144 had employment of 999 or fewer, and 44 firms had
employment of 1,000 employees or more. Thus, under this category and
the associated small business size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities that may be affected by our proposed
action. The Commission's own data--available on its Spectrum
Dashboard--indicate that, as of February 9, 2012, there are 347
Cellular licensees that will be affected by this NPRM. The Commission
does not know how many of these licensees are small, as the Commission
does not collect that information for these types of entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
80. In the NPRM, the Commission seeks to reduce filing burdens and
recordkeeping for all Cellular licensees by changing from site-based to
geographic area licensing. We propose that, in the Blocks for which an
Overlay License is offered, the CGSA boundaries of incumbents that do
not become Overlay Licensees would be permanently fixed insofar as such
incumbents would not be permitted to expand their CGSAs, except through
contractual arrangements with other licensees. They would, however, be
free to modify their systems in response to market demands without
Commission filings in most cases, so long as the CGSA would not be
changed as a result, and subject to any obligations we impose on all
Cellular licensees.
81. Under our proposal, in most cases Overlay Licensees would be
free as well to modify their systems without Commission filings,
thereby minimizing their regulatory burdens. In addition, while Overlay
Licensees would be obligated to protect incumbent licensees' operations
from harmful interference, that obligation would cease with respect to
any incumbent's licensed area (CGSA) or portion thereof that is
relinquished for any reason in the future (e.g., through failure to
renew the license). Such relinquished areas would not be returned to
the Commission's auction inventory but, rather, could be served by the
Overlay Licensee on a primary basis immediately, without being subject
to competitive bidding.
82. Once an Overlay License is granted via auction for Chambers, we
propose not to subject the Licensee to the existing rules concerning
the five-year build-out phase or the Phase I or Phase II license
application processes that have been applicable to other CMA Blocks.
Instead, we propose that the Chambers Overlay Licensee be required to
demonstrate that it has built out a Cellular system that is providing
signal coverage and offering service over at least 35 percent of the
geographic area of its license authorization within four years of
initial license grant and at least 70 percent of the geographic area of
its license authorization by the end of the license term, with failure
to meet these build-out deadlines resulting in automatic forfeiture of
the license. We further propose that, after the build-out requirements
have been met, the Chambers Overlay Licensee should be subject to the
same rules and obligations that we apply to the other Overlay Licenses
issued in Stage I of the transition. For example, we seek comment in
the NPRM on whether Overlay Licensees should be subject to performance
requirements.
83. The Commission also proposes that all Cellular licensees be
subject to a field strength limit at their respective license
boundaries and that a median field strength limit of 40 dB[micro]V/m is
appropriate for the Cellular Band. Coordination among co-channel
licensees regarding channel usage will remain essential in actually
preventing harmful interference. We therefore propose to retain the
current Cellular Service rule mandating coordination in certain
circumstances (Sec. 22.907), but we also propose to allow Cellular
licensees to negotiate contractual agreements specifying different
field strength limits. This will provide licensees with additional
flexibility in their operations.
84. In the NPRM, we also propose various other changes in parts 1
and 22 of the Commission's rules that apply to Cellular Service
licensees. For example, we propose to streamline the application
requirements for site-based Unserved Area applications, notably Sec.
22.953 (deleting certain technical data requirements that, going
forward, we believe will no longer be routinely necessary). We also
propose to delete provisions that we believe are obsolete going
forward, such as those requiring certifications associated with
cessation of analog service, often referred to as the ``analog
sunset.'' Here too, our proposals are consistent with the Commission's
regulatory reform agenda and its Data Innovation Initiative. The
proposed rules are set forth in Appendix E and we encourage all
interested parties to review them carefully and comment on them with
specificity.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
85. The RFA requires an agency to describe any significant,
specifically small business, 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 and
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.
86. The NPRM discusses several alternatives to the proposed two-
stage transition. These include, for example, alternatives that would
entail transition via auction in more than two stages as well as
possible exemption for certain extremely rural markets such as Alaskan
markets and others with special build-out challenges. The NPRM also
discusses proposals put forth by industry stakeholders thus far in this
proceeding, including an approach that would not entail competitive
bidding. The NPRM specifically invites interested parties to comment on
these various alternatives and to suggest other alternative proposals.
At this time, the Commission has not excluded any alternative proposal
from its consideration, but it would do so in this proceeding if the
record indicates that a particular proposal would have a significant
and unjustifiable adverse economic impact on small entities.
87. The Commission believes that the proposed transition to a
geographic-area licensing system for the Cellular Service in two stages
via auction will benefit all Cellular incumbents and entrants,
regardless of size. The proposed scheme would put Cellular licensees on
a regulatory par with other wireless licensees that hold geographic
area licenses, such as PCS and certain AWS licensees, thus easing the
regulatory burden of compliance by eliminating discrepancies in
competing services. The Commission has historically valued
harmonization in the rules for wireless licensees by eliminating
burdensome requirements, as appropriate. Furthermore, we anticipate
that the modernized licensing scheme will encourage Cellular licensees
to invest in and deploy ever more advanced technologies as they evolve.
By reducing the paperwork burden on Cellular providers, we would also
expect their resulting lower costs to have some positive effect on the
rates paid by subscriber groups, including small businesses that rely
on Cellular service.
[[Page 15678]]
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
C. Initial Paperwork Reduction Analysis
88. This document contains potential new and modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and OMB
to comment on the potential 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.''
VI. Ordering Clauses
89. Pursuant to sections 1, 2, 4(i), 301, 302, 303, 308, 309(j),
and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152, 154(i), 301, 302, 303, 308, 309(j), and 332, this Notice of
Proposed Rulemaking and Order are hereby adopted.
90. Pursuant to sections 4(i), 301, 303, 308, and 309 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 303,
308, and 309, that effective as of the date of the adoption of this
Notice of Proposed Rule Making and Order, THE FEDERAL COMMUNICATIONS
COMMISSION WILL NOT ACCEPT FOR FILING ANY APPLICATIONS for licenses in
the Cellular Band that are inconsistent with the terms of the
application freeze discussed herein. This suspension is effective until
further notice and applies to any such applications received on or
after the date of adoption of this Notice of Proposed Rulemaking and
Order.
91. NOTICE IS HEREBY GIVEN of the proposed regulatory changes
described in this Notice of Proposed Rulemaking and that comment is
sought on these proposals.
92. 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, Radio, Reporting and recordkeeping requirements,
Telecommunications.
47 CFR Part 22
Communications common carriers, Radio, Reporting and recordkeeping
requirements, Rural areas.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 1 and 22 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, 227, 303(r), and 309.
Sec. 1.919 [Amended]
2. Amend Sec. 1.919 by removing and reserving paragraph (c).
3. Amend Sec. 1.929 by revising paragraph (b)(1), removing and
reserving paragraph (b)(3), and adding paragraph (b)(4) to read as
follows:
Sec. 1.929 Classification of filings as major or minor.
* * * * *
(b) * * *
(1) Request for an authorization or an amendment to a pending
application that would expand the Cellular Geographic Service Area
(CGSA) of an existing cellular system or, in the case of an amendment,
as previously proposed in an application, in a CMA Block that has not
been included in an auction for Cellular Overlay Authorizations under
Sec. 22.985.
* * * * *
(4) Request for a Cellular Overlay Authorization. See Sec. 22.985.
* * * * *
4. Amend Sec. 1.958 by revising paragraph (d) to read as follows:
Sec. 1.958 Distance computation.
* * * * *
(d) Calculate the number of kilometers per degree of longitude
difference for the mean geodetic latitude calculated in paragraph (b)
of this section as follows:
KPDlon = 111.41513 cos ML - 0.09455 cos 3ML + 0.00012 cos
5ML
* * * * *
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.
6. Amend Sec. 22.99 by:
a. Removing the definitions ``Build-out transmitters,''
``Extension,'' ``Five year build-out period,'' and ``Partitioned
cellular market'';
b. Revising the definitions ``Cellular Geographic Service Area,''
and ``Cellular markets''; and
c. Revising the term ``Unserved areas'' to read ``Unserved Area''
and revising the first sentence of its definition;
d. Adding definitions ``Cellular area-based authorization,''
``Cellular Licensed Area,'' ``Cellular Overlay Authorization (COA),''
``Cellular Overlay Licensee,'' ``Cellular site-based authorization,''
``CMA Block,'' and ``Substantially Licensed CMA Block''.
The revisions and additions read as follows:
Sec. 22.99 Definitions.
* * * * *
Cellular area-based authorization. An authorization in the Cellular
Radiotelephone Service where the licensed area is a specified fixed
geographic area other than a CGSA (e.g., a CMA, as in the case of a
Cellular Overlay Authorization) irrespective of the locations and
technical parameters of base stations (cell sites), in a CMA Block
included in an auction under Sec. 22.985.
Cellular Geographic Service Area (CGSA). The licensed geographic
area, determined by the specified locations and technical parameters of
base stations (cell sites) pursuant to the procedures set forth in
Sec. 22.911, within which a cellular system is entitled to protection
and adverse effects are recognized, for the purpose of determining
whether a petitioner has standing, in the Cellular Radiotelephone
Service.
Cellular Licensed Area. The geographic area within which the
cellular licensee is permitted to transmit, or consent to allow other
cellular licensees to transmit, electromagnetic energy and signals on
the assigned channel block, in order to provide cellular service.
Cellular Market Area (CMA). A standard geographic area used by the
FCC for administrative convenience in the licensing of cellular
systems; a more recent term for ``cellular market'' (and includes
Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs)).
See Sec. 22.909.
[[Page 15679]]
Cellular markets (obsolescent). See definition for ``Cellular
Market Area (CMA)''.
* * * * *
Cellular Overlay Authorization (COA). A cellular area-based
authorization in a CMA Block included in an auction under Sec. 22.985,
where the cellular licensed area is the geographic area within the CMA
boundary (Channel Block A or B), subject to the requirement to protect
incumbent licensees' operations from harmful interference under
applicable rules.
Cellular Overlay Licensee. The holder of a Cellular Overlay
Authorization.
* * * * *
Cellular site-based authorization. An authorization in the Cellular
Radiotelephone Service where the Cellular Licensed Area is determined
by the specified locations and technical parameters of base stations
(cell sites), pursuant to the procedures set forth in Sec. 22.911.
* * * * *
CMA Block. In the Cellular Radiotelephone Service, a CMA considered
in regard to a specified channel block, i.e., either Channel Block A or
Channel Block B (see Sec. 22.905).
* * * * *
Substantially Licensed CMA Block. A CMA Block (A or B) where at
least 95 percent of the total land area is Cellular Geographic Service
Area or which contains no contiguous parcel of Unserved Area larger
than 130 square kilometers (50 square miles).
* * * * *
Unserved Area. With regard to a channel block allocated for
assignment in the Cellular Radiotelephone Service: Geographic area in
the District of Columbia, or any State, Territory or Possession of the
United States of America that is not within any Cellular Geographic
Service Area of any cellular system authorized to transmit on that
channel block. * * *
7. Amend Sec. 22.131 by revising paragraphs (c)(3)(iii) and
(d)(2)(iv) to read as follows:
Sec. 22.131 Procedures for mutually exclusive applications.
* * * * *
(c) * * *
(3) * * *
(iii) If all of the mutually exclusive applications filed on the
earliest filing date are applications for initial authorization, a 30-
day notice and cut-off filing group is used.
* * * * *
(d) * * *
(2) * * *
(iv) Any application to expand the CGSA of a cellular system (as
defined in Sec. 22.911) in a CMA Block that has not been included in
an auction under Sec. 22.985.
* * * * *
8. Amend Sec. 22.165 by revising paragraph (e) to read as follows:
Sec. 22.165 Additional transmitters for existing systems.
* * * * *
(e) Cellular Radiotelephone Service. (1) In a CMA Block that has
not been included in an auction under Sec. 22.985, the service area
boundaries of the additional transmitters, as calculated by the method
set forth in Sec. 22.911(a), must remain within the CGSA; the licensee
must seek prior approval (using FCC Form 601) regarding any
transmitters to be added under this section that would cause a change
in the CGSA boundary. See Sec. 22.953.
(2) With regard to an incumbent's CGSA in a CMA Block that has been
included in an auction under Sec. 22.985, the service area boundaries
of the additional transmitters, as calculated by the method set forth
in Sec. 22.911(a), must remain within the incumbent's CGSA.
(3) A Cellular Overlay Licensee is permitted to expand into any
Unserved Area within its licensed CMA Block so long as it protects
existing cellular licensees from harmful interference.
* * * * *
Sec. 22.228 [Removed]
9. Remove Sec. 22.228.
10. Revise Sec. 22.901 to read as follows:
Sec. 22.901 Cellular service requirements and limitations.
Each cellular system must provide either mobile service, fixed
service, or a combination of mobile and fixed service, subject to the
requirements, limitations and exceptions in this section. Mobile
service provided may be of any type, including two-way radiotelephone,
dispatch, one-way or two-way paging, and personal communications
services (as defined in part 24 of this chapter). Fixed service is
considered to be primary service, as is mobile service. When both
mobile and fixed services are provided, they are considered to be co-
primary services. In providing cellular service, each cellular system
may incorporate any technology that meets all applicable technical
requirements in this part.
11. Revise Sec. 22.909 to read as follows:
Sec. 22.909 Cellular market areas (CMAs).
Cellular market areas (CMAs) are standard geographic areas used by
the FCC for administrative convenience in the licensing of cellular
systems. CMAs comprise Metropolitan Statistical Areas (MSAs) and Rural
Service Areas (RSAs). All CMAs and the counties they comprise are
listed in: ``Common Carrier Public Mobile Services Information,
Cellular MSA/RSA Markets and Counties,'' Public Notice, Report No. CL-
92-40, 6 FCC Rcd 742 (1992).
(a) MSAs. Metropolitan Statistical Areas are 306 areas, including
New England County Metropolitan Areas and the Gulf of Mexico Service
Area (water area of the Gulf of Mexico, border is the coastline),
defined by the Office of Management and Budget, as modified by the FCC.
(b) RSAs. Rural Service Areas are 428 areas, other than MSAs,
established by the FCC.
Sec. 22.912 [Removed]
12. Remove Sec. 22.912.
Sec. 22.929 [Removed]
13. Remove Sec. 22.929.
14. Revise Sec. 22.946 to read as follows:
Sec. 22.946 Construction period for cellular systems under site-based
authorizations.
The construction period applicable to specific new or modified
cellular facilities for which a site-based authorization is granted is
one year, beginning on the date the authorization is granted. To
satisfy this requirement, a cellular system must be providing service
to mobile stations operated by subscribers and roamers. The licensee
must notify the FCC (FCC Form 601) after the requirements of this
section are met. See Sec. 1.946 of this chapter. GMEZ cellular systems
are not subject to construction period requirements. See Sec. 22.950.
15. Revise Sec. 22.947 to read as follows:
Sec. 22.947 Build-out period for CMA Block 672A (Chambers, TX).
This rule section applies only to cellular systems operating on
Channel Block A in CMA 672 (Chambers, Texas).
(a) A licensee that holds the Cellular Overlay Authorization for
CMA Block 672A (Chambers, Texas) initially awarded via auction (i.e.,
the CMA Block for which cellular service was authorized solely under
interim operating authority prior to the Stage I auction described in
Sec. 22.985) must be providing signal coverage and offering service
over at least 35 percent of the geographic area of the CMA Block within
four years of the grant of the authorization, and over at least 70
percent of the geographic area of its license authorization by the end
of the license term. In applying this geographic benchmark, the
licensee is to count total land area.
[[Page 15680]]
(b) The licensee must notify the FCC (FCC Form 601) after the
requirements of this section are met and must include with its
notification(s) GIS map files and other supporting documents showing
compliance with the construction requirement. See Sec. 1.946 of this
chapter. See also Sec. 22.953.
(c) Failure to meet the requirements in this section by the
deadline will result in automatic termination of the authorization and
such licensee will be ineligible to regain it.
16. Revise Sec. 22.948 to read as follows:
Sec. 22.948 Geographic partitioning and spectrum disaggregation.
Cellular licensees may apply to partition their cellular licensed
area or to disaggregate their licensed spectrum at any time following
the grant of their authorization(s). Parties seeking approval for
partitioning and disaggregation shall request from the FCC an
authorization for partial assignment of a license pursuant to Sec.
1.948 of this chapter. See also paragraph (f) of this section.
(a) Partitioning. Applicants must file FCC Form 603 pursuant to
Sec. 1.948 of this chapter. The filing must include the attachments
required under Sec. 22.953, including GIS map files and a reduced-size
PDF map, for both the assignor and the assignee.
(1) Within a CMA Block that has not yet been included in an auction
under Sec. 22.985, partitioning of a CGSA must be on a site-by-site
basis; i.e., the partitioned area must comprise only the area resulting
from one or more cell sites pursuant to Sec. 22.911. At least one
entire cell site must be partitioned. If all cell sites are assigned,
it is not partitioning, but rather a full assignment of authorization.
(2) Partitioning of the licensed area of a cellular area-based
authorization (including, e.g., the licensed area of a Cellular Overlay
Authorization) to a licensee in a CMA Block that has not yet been
included in an auction under Sec. 22.985 must be on a site-by-site
basis; i.e., the partitioned area must comprise CGSA resulting from one
or more cell sites pursuant to Sec. 22.911.
(3) Partitioning of the licensed area of a cellular area-based
authorization within the same CMA Block that has been included in an
auction under Sec. 22.985, or to a licensee in another CMA Block that
has also been included in such an auction (including, e.g., the
partitioning of a Cellular Overlay Authorization area by one Cellular
Overlay Licensee to another Cellular Overlay Licensee), may involve any
proportion of division. If all of the licensed area is assigned, it is
not partitioning, but rather a full assignment of authorization.
(b) Disaggregation. Spectrum may be disaggregated in any amount.
(c) Combined partitioning and disaggregation. The FCC will consider
requests for partial assignment of licenses that propose combinations
of partitioning and disaggregation.
(d) Field strength limit. For purposes of partitioning and
disaggregation, cellular systems must be designed so as not to exceed a
median field strength level of 40 dB[mu]V/m at or beyond the boundary
of the Cellular Licensed Area, unless all affected adjacent service
area licensees agree to a different signal level. See Sec. 22.983.
(e) License term. The license term for a partitioned license area
and for disaggregated spectrum will be the remainder of the original
license term.
(f) Spectrum Leasing. Cellular spectrum leasing is subject to the
provisions of paragraphs (a)(1) through (a)(3), (b), and (c) of this
section, except that applicants must file FCC Form 608 (not FCC Form
603), as well as all applicable provisions of subpart X of part 1 of
this chapter.
17. Revise Sec. 22.949 to read as follows:
Sec. 22.949 Unserved Area licensing process for site-based systems.
This section sets forth the process for licensing Unserved Area in
CMA Blocks not yet included in an auction pursuant to Sec. 22.985. The
licensing process in this Sec. 22.949 allows eligible parties to apply
for any Unserved Area that remains in such CMA Blocks.
(a) The Unserved Area licensing process described in this section
is on-going and applications may be filed at any time, until the CMA
Block is included in an auction pursuant to Sec. 22.985.
(b) There is no limit to the number of Unserved Area applications
that may be granted on each CMA Channel Block that remains subject to
the procedures of this section. Consequently, such Unserved Area
applications are mutually exclusive only if the proposed CGSAs would
overlap. Mutually exclusive applications are processed using the
general procedures in Sec. 22.131. See also Sec. 22.961.
(c) Unserved Area applications under this section may propose a
CGSA covering more than one CMA. Each such Unserved Area application
must request authorization for only one CGSA.
(d) Settlements among some, but not all, applicants with mutually
exclusive applications for Unserved Area (partial settlements) under
this section are prohibited. Settlements among all applicants with
mutually exclusive applications under this section (full settlements)
are allowed and must be filed no later than the date that the FCC Form
175 (short-form) is filed.
18. Amend Sec. 22.950 by revising paragraphs (c) and (d) to read
as follows:
Sec. 22.950 Provision of service in the Gulf of Mexico Service Area
(GMSA).
* * * * *
(c) Gulf of Mexico Exclusive Zone (GMEZ). GMEZ licensees have an
exclusive right to provide cellular service in the GMEZ, and may add,
modify, or remove facilities anywhere within the GMEZ without prior FCC
approval. There is no Unserved Area licensing procedure for the GMEZ.
(d) Gulf of Mexico Coastal Zone (GMCZ). The GMCZ is subject to the
Unserved Area licensing procedure set forth in Sec. 22.949.
19. Revise Sec. 22.953 to read as follows:
Sec. 22.953 Content and form of applications for cellular
authorizations.
Applications for authority to operate a new cellular system or to
modify an existing cellular system must comply with the specifications
in this section.
(a) New Systems. In addition to information required by subparts B
and D of this part and by FCC Form 601, applications for a site-based
authorization to operate a cellular system must comply with all
applicable requirements set forth in part 1 of this chapter, including
the requirements specified in Sec. Sec. 1.913, 1.923, and 1.924, and
must include the information listed below, in numbered exhibits.
Geographical coordinates must be correct to 1 second using
the NAD 83 datum.
(1) Exhibit I--Geographic Information System (GIS) map files. The
FCC will specify the file format required for the Geographic
Information System (GIS) map files that are to be submitted
electronically via the Universal Licensing System (ULS). In addition to
GIS map files submitted electronically, the FCC reserves the right to
request a full-size paper map from the applicant. The scale of the
full-size paper map must be 1:500,000, regardless of whether any
different scale is used for the reduced-size PDF map required in
Exhibit II. In addition to the information required for the GIS map
files, the paper map, if requested, must include all the information
required for the reduced-size PDF map (see paragraph (a)(2) of this
section).
(2) Exhibit II--Reduced-size PDF map. This map must be 8\1/2\ x 11
inches (if possible, a proportional reduction of a 1:500,000 scale
map). The map must
[[Page 15681]]
have a legend, a distance scale and correctly labeled latitude and
longitude lines. The map must be clear and legible. The map must
accurately show the cell sites (transmitting antenna locations), the
service area boundaries of additional and modified cell sites, the
entire CGSA, extensions of the composite service area beyond the CGSA
(see Sec. 22.911), and the relevant portions of the CMA boundary.
(3) Exhibit III--Antenna Information. In addition, upon request by
an applicant, licensee, or the FCC, a cellular applicant or licensee of
whom the request is made shall furnish the antenna type, model, the
name of the antenna manufacturer, antenna gain in the maximum lobe, the
beam width of the maximum lobe of the antenna, a polar plot of the
horizontal gain pattern of the antenna, antenna height to tip above
ground level, the height of the center of radiation of the antenna
above the average terrain, the height of the antenna center of
radiation above the average elevation of the terrain along each of the
8 cardinal radials, the maximum effective radiated power, and the
electric field polarization of the wave emitted by the antenna when
installed as proposed to the requesting party within ten (10) days of
receiving written notification.
(4) through (10) [Reserved].
(11) Additional information. The FCC may request information not
specified in paragraphs (a)(1) through (3) of this section as necessary
to process an application.
(b) Existing systems: major and minor modifications. Licensees
making major modifications pursuant to Sec. 1.929(a) and (b) of this
chapter, and licensees making minor modifications pursuant to Sec.
1.929(k) of this chapter, must file FCC Form 601 and comply with the
requirements of paragraph (a) of this section.
(c) [Reserved].
Sec. 22.960 [Removed]
20. Remove Sec. 22.960.
21. Add Sec. 22.961 to read as follows:
Sec. 22.961 Cellular licenses subject to competitive bidding.
The following mutually exclusive initial applications for cellular
licensed area authorizations are subject to competitive bidding, and
unless otherwise provided by this subpart, the general competitive
bidding procedures set forth in part 1, subpart Q of this chapter will
apply:
(a) Mutually exclusive initial applications for cellular site-based
authorizations; and
(b) Mutually exclusive initial applications for Cellular Overlay
Authorizations.
Sec. Sec. 22.962 through 22.967 [Removed and Reserved]
22. Remove and Reserve Sec. Sec. 22.962 through 22.967.
Sec. 22.969 [Removed]
24. Remove Sec. 22.969.
25. Add Sec. 22.983 to read as follows:
Sec. 22.983 Field strength limit.
The predicted or measured median field strength at any location on
or beyond the boundary of any Cellular Licensed Area must not exceed 40
dB[mu]V/m, unless the adjacent cellular service licensee(s) on the same
Channel Block agree(s) to a different field strength. This value
applies to both the initially authorized areas and to partitioned
areas.
26. Add Sec. 22.985 to read as follows:
Sec. 22.985 Geographic area licensing via auctions.
The licensing procedures in this section do not apply to any CMA
Block in the GMSA (see Sec. 22.950).
(a) Determination of licensing status of CMA Blocks. The FCC will
determine whether each CMA Block is Substantially Licensed. A CMA Block
will be deemed Substantially Licensed if, as of a cut-off date
established by the FCC, either:
(1) At least 95 percent of the total land area in the CMA Block is
already licensed as CGSA; or
(2) The CMA Block contains no contiguous parcel of Unserved Area
that is larger than 130 square kilometers (50 square miles).
(b) Stage I Auction. Any auction to resolve mutually exclusive
applications filed with respect to CMA Blocks that are included in
Stage I for the assignment of Cellular Overlay Authorizations shall be
conducted pursuant to the procedures set forth in part 1, subpart Q of
this chapter. Any eligible entity may bid in the Stage I auction. A CMA
Block is eligible to be included in the Stage I auction if either:
(1) The CMA Block is determined by the FCC to be Substantially
Licensed; or,
(2) The CMA Block has cellular service that has been authorized
solely under interim operating authority (i.e., for which no license
has ever been issued).
(c) Stage II Auction. Any auction to resolve mutually exclusive
applications filed with respect to CMA Blocks that are included in
Stage II for the assignment of Cellular Overlay Authorizations in such
Blocks shall be conducted pursuant to the procedures set forth in part
1, subpart Q of this chapter. Any eligible entity may bid in the Stage
II auction.
27. Add Sec. 22.986 to read as follows:
Sec. 22.986. Designated Entities.
(a) Eligibility for small business provisions in the Cellular
Radiotelephone Service. (1) A very small business is an entity that,
together with its controlling interests and affiliates, has average
annual gross revenues not exceeding $3 million for the preceding three
years.
(2) A small business is an entity that, together with its
controlling interests and affiliates, has average annual gross revenues
not exceeding $15 million for the preceding three years.
(3) An entrepreneur is an entity that, together with its
controlling interests and affiliates, has average annual gross revenues
not exceeding $40 million for the preceding three years.
(b) Bidding credits in the Cellular Radiotelephone Service. A
winning bidder that qualifies as a very small business, as defined in
this section, or a consortium of very small businesses may use the
bidding credit specified in Sec. 1.2110(f)(2)(i) of this chapter. A
winning bidder that qualifies as a small business, as defined in this
section, or a consortium of small businesses may use the bidding credit
specified in Sec. 1.2110(f)(2)(ii) of this chapter. A winning bidder
that qualifies as an entrepreneur, as defined in this section, or a
consortium of entrepreneurs may use the bidding credit specified in
Sec. 1.2110(f)(2)(iii) of this chapter.
[FR Doc. 2012-5689 Filed 3-15-12; 8:45 am]
BILLING CODE 6712-01-P