[Federal Register Volume 77, Number 111 (Friday, June 8, 2012)]
[Rules and Regulations]
[Pages 33972-33979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13872]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket Nos. 12-64 and 11-110; FCC 12-55]


Channel Spacing and Bandwidth Limitations for Certain Economic 
Area (EA)-based 800 MHz Specialized Mobile Radio (SMR) Licensees

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission amends its rules to allow 
Economic Area (EA)-based 800 MHz Specialized Mobile Radio (SMR) 
licensees to exceed a legacy channel spacing and bandwidth limitation, 
subject to conditions to protect 800 MHz public safety licensees from 
harmful interference. Licensees are permitted to exceed the channel 
spacing and bandwidth limitation in the 813.5-824/858.5-869 MHz band 
segment in National Public Safety Planning Advisory Committee (NPSPAC) 
regions where 800 MHz reconfiguration is complete. In areas where 800 
MHz reconfiguration is incomplete, EA-based 800 MHz licensees only are 
permitted to exceed the channel spacing and bandwidth limitation in the 
813.5-821/858.5-866 MHz band segment. Any EA-based 800 MHz SMR licensee 
that intends to exceed the channel spacing and bandwidth limitation of 
the Commission's rules must provide 30 days written notice to public 
safety licensees with base stations in an affected NPSPAC region and 
within 113 kilometers (70 miles) of the border of an affected NPSPAC 
region. This rule change is necessary to allow EA-based 800 MHz SMR 
licensees to deploy advanced wireless services to effectively compete 
in the wireless marketplace.

DATES: Effective July 9, 2012.

FOR FURTHER INFORMATION CONTACT: Brian Regan, Mobility Division, 
Wireless Telecommunications Bureau, [email protected], (202) 418-
2849.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in WT Docket Nos. 12-64 and 11-110; FCC 12-55, adopted and 
released May 24, 2012. The full text of this document is available for 
inspection and copying during normal business hours in the FCC 
Reference Center, 445 12th Street SW., Washington, DC 20554. The 
complete text may be purchased from the Commission's copy contractor, 
Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, 
Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via 
email at [email protected]. The full text may also be downloaded at: 
www.fcc.gov. 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).

Summary

I. Introduction and Background

    1. As part of our ongoing efforts to reduce barriers to innovation 
and investment in new technologies and to promote greater spectrum 
efficiency, we adopt this Report and Order to amend a legacy regulatory 
requirement in part

[[Page 33973]]

90 and provide certain spectrum licensees with increased regulatory and 
technical flexibility to deploy advanced wireless services in portions 
of the 800 MHz band. By removing a legacy channelization scheme and 
bandwidth limitation, this Report and Order will allow Economic Area 
(EA)-based 800 MHz Specialized Mobile Radio (SMR) licensees in the 
813.5-824/858.5-869 MHz portion of the 800 MHz band to more efficiently 
utilize their spectrum resources to deploy competitive wireless 
services. Consumers will benefit from this flexibility through improved 
access to advanced wireless services, including in rural, unserved, and 
underserved areas. We are also mindful of the need to protect 800 MHz 
public safety licensees from harmful interference, and take action in 
this Report and Order to help ensure that the flexibility provided to 
EA-based 800 MHz SMR licensees does not cause harmful interference to 
800 MHz public safety licensees.
    2. The Commission revised its part 90 rules to create a new 
geographic-licensing framework for 800 MHz SMR in 1995. In doing so, 
the Commission transitioned the 800 MHz SMR service from a site-by-site 
licensing process that required licensees to seek prior authorization 
to add or modify individual frequency channels and transmitter sites to 
a geographic-based licensing mechanism that provides licensees with the 
flexibility to add transmitters or modify operations within their 
licensed market and licensed spectrum as market conditions dictate.
    3. The Commission determined that wide-area licensing would ``give 
licensees the flexibility to use technologies that can operate on 
either contiguous or non-contiguous spectrum'' and that large spectrum 
blocks were necessary for ``broadband technologies such as CDMA and 
GSM.'' With wide-area licenses, the Commission indicated licensees 
would be able to ``compete effectively with other CMRS providers, such 
as cellular and broadband PCS systems.'' Further, the Commission stated 
its intent in the Executive Summary of the 800 MHz SMR First Report and 
Order, at 61 FR 6138, Feb. 16, 1996, that EA-based licensees would have 
``full discretion over channelization of available spectrum within the 
block.'' The Commission also adopted an out-of-band emission (OOBE) 
requirement that applies to the outer channels of the spectrum block 
and to spectrum adjacent to interior channels used by incumbents.
    4. In 2004, the Commission initiated a process to reconfigure the 
800 MHz band in the 800 MHz Reconfiguration Report and Order, at 69 FR 
67823, Nov. 22, 2004, to ``address the [then] ongoing and growing 
problem of interference to public safety communications in the 800 MHz 
band.'' The interference problem was caused ``by a fundamentally 
incompatible mix of two types of communications systems: Cellular-
architecture multi-cell systems * * * and high-site non-cellular 
systems.'' To provide immediate relief, the Commission implemented 
technical standards that defined unacceptable interference in the 800 
MHz band, while also reconfiguring the band to separate commercial 
wireless systems from public safety and other high site systems. Under 
the reconfiguration plan, SMR and other cellular-system operators 
including Sprint Nextel were required to vacate the 806-817/851-862 MHz 
band segment and relocate to the 817-824/862-869 MHz band segment.
    5. In part due to the reconfiguration of the 800 MHz band, Sprint 
Nextel holds the majority of EA-based 800 MHz SMR licenses, and reports 
that it ``has or will soon have access to 14 MHz of spectrum in the 
ESMR band * * * across much of the nation.'' In June 2010, Sprint 
Nextel announced its Network Vision initiative, under which it will 
``deploy next-generation base station technology that will operate 
across all of Sprint's licensed spectrum.'' As part of its Network 
Vision initiative, Sprint Nextel reports it will incorporate its 800 
MHz SMR spectrum into its CDMA network and forthcoming LTE deployment. 
However, Sprint Nextel is unable to aggregate its EA-based 800 MHz SMR 
channels to deploy CDMA or LTE because of the channel spacing and 
bandwidth limitation in Sec.  90.209 of the Commission's rules. Sprint 
Nextel reports that CDMA requires contiguous spectrum and occupies a 
1.25 MHz bandwidth, and that other wireless carriers are deploying LTE 
using 10 megahertz or 20 megahertz channel pairs. Specifically, Sec.  
90.209 limits EA-based 800 MHz SMR licensees to 25 kHz channels with a 
bandwidth of 20 kHz. Therefore, in June 2011, Sprint Nextel filed a 
petition for declaratory ruling, or rulemaking in the alternative, that 
would allow EA-based 800 MHz SMR licensees (commonly referred to as 
Enhanced SMR or ESMR) to exceed the channel spacing and bandwidth 
limitation under Sec.  90.209. The Wireless Telecommunications Bureau 
released a Public Notice, WT Docket No. 11-110, DA 11-1152, June 30, 
2011, seeking comment on Sprint Nextel's petition.
    6. Prior to Sprint Nextel filing the petition, and subsequently 
while the petition has been pending, the Commission has granted waivers 
and special temporary authorizations to allow Sprint Nextel to deploy 
and test CDMA in several markets on its EA-based 800 MHz SMR licenses. 
Sprint Nextel filed for additional waivers in March 2012, and the 
Wireless Telecommunications Bureau issued a Public Notice, WT Docket 
No. 12-82, DA 12-506, Mar. 30, 2012, seeking comment on the request.
    7. Based on the record developed in response to the Public Notice 
seeking comment on Sprint's petition for declaratory ruling or 
rulemaking in the alternative and our analysis of the relevant part 90 
rules and the underlying 800 MHz proceeding, we concluded that while 
the Commission may have intended to provide EA-based 800 MHz SMR 
licensees with discretion over channelization within their channel 
blocks, the Commission did not amend the applicable channel spacing and 
bandwidth limitation in Sec.  90.209 to allow licensees to exercise 
such discretion. We therefore denied Sprint Nextel's request for a 
declaratory ruling and issued a Notice of Proposed Rulemaking, (NPRM) 
at 77 FR 18991, Mar. 29, 2012, proposing to allow EA-based 800 MHz SMR 
licensees to exceed the channel spacing and bandwidth limitation in 
Sec.  90.209, subject to proposed conditions to protect against 
potential harmful interference with 800 MHz public safety licensees.
    8. Commenters generally support our proposal to provide flexibility 
to EA-based 800 MHz SMR licensees to exceed the channel spacing and 
bandwidth limitation in Sec.  90.209. Similarly, many commenters 
support or do not oppose the proposed conditions to protect 800 MHz 
public safety licensees from harmful interference. As discussed below, 
we adopt the proposals from the NPRM with a minor modification.

I. Report and Order

    9. We amend Sec.  90.209 of the Commission's rules to allow EA-
based 800 MHz SMR licensees operating in the 813.5-824/858.5-869 MHz 
portion of the 800 MHz band to provide wireless services across 
aggregated channels, without unnecessary bandwidth or channelization 
limitations. We note that, pursuant to Sec.  90.614(c) of the 
Commission's rules, the band segment 813.5-817/858.5-862 MHz is 
available for SMR operations only in the Southeastern United States. We 
conclude that the public interest will be

[[Page 33974]]

served by allowing EA-based 800 MHz SMR licensees to exceed the 
existing channel spacing and bandwidth limitation in Sec.  90.209, 
subject to conditions designed to protect neighboring public safety 
operations. We find strong support in the record for this conclusion. 
As Motorola Solutions, Inc. asserts, the proposals in the NPRM ``strike 
the right balance * * * by allowing EA-based 800 MHz SMR licensees to 
introduce more advanced wideband technologies on their licensed 
spectrum in situations where there is little risk to public [safety] 
operations.''
    10. We also find that the proposals from the NPRM will balance the 
benefits of providing channel spacing and bandwidth flexibility to EA-
based 800 MHz SMR licensees with the need to continue to prevent 
harmful interference to 800 MHz public safety licensees. As described 
below, the record shows that with the flexibility we adopt today, EA-
based 800 MHz SMR licensees will be able to invest in the deployment of 
new wireless technologies, such as CDMA and LTE, while incurring little 
additional compliance costs. The record also shows that consumers will 
benefit from access to these advanced technologies. Further, the record 
demonstrates little additional costs to 800 MHz public safety licensees 
from such operation relative to the status quo, which may be incurred 
through increased monitoring for harmful interference for a time 
following an EA-based 800 MHz SMR licensee's transition to a wideband 
technology. We find that, based on the record, the minimal costs 
incurred by EA-based 800 MHz SMR licensees or 800 MHz public safety 
licensees are far outweighed by the benefits gained through the 
efficient utilization of spectrum resources and the deployment and 
availability of advanced wireless services.
    11. Below we explain the conditions under which EA-based 800 MHz 
SMR licensees may exceed the channel spacing and bandwidth limitation 
in Sec.  90.209, take steps to protect 800 MHz public safety licensees 
from harmful interference, and discuss the continued applicability and 
sufficiency of other part 90 rules. We also discuss and decline to 
adopt additional protections proposed by commenters and decline to take 
other actions that we find are outside of the scope of this proceeding.

A. Channel Spacing and Bandwidth Flexibility for EA-Based 800 MHz SMR 
Licensees

    12. We find that there are substantial benefits to revising our 
part 90 rule regarding channel spacing and bandwidth limits. The record 
demonstrates that providing EA-based 800 MHz SMR licensees the 
flexibility to exceed the channel spacing and bandwidth limitation in 
Sec.  90.209 effectively eliminates a barrier to the deployment of 
advanced wireless technologies, promotes spectrum efficiency, and 
improves regulatory parity between commercial wireless licensees, to 
consumers' benefit. Under this rule change, EA-based 800 MHz SMR 
licensees will no longer be forced to comply with an inefficient 
channelization scheme that prevents licensees from utilizing multiple 
contiguous channels to provide service. With flexibility regarding 
channelization and bandwidth utilization, as Sprint Nextel and 
SouthernLINC Wireless (SouthernLINC) assert, EA-based 800 MHz SMR 
licensees will be able to deploy CDMA, LTE, and other advanced wireless 
technologies. Licensees will therefore be able to transition networks 
deployed using EA-based 800 MHz SMR licenses from legacy narrowband 
technologies to 3G as well as other advanced technologies including 
LTE, in order to better compete in the commercial wireless marketplace. 
We agree with Sprint Nextel that this will allow EA-based 800 MHz SMR 
licensees to ``respond to consumer demand for innovative wireless 
services'' including, as SouthernLINC argues, through the deployment of 
advanced wireless services to ``rural, unserved, and underserved 
areas.'' Southern also argues that when SouthernLINC transitions its 
network to more advanced wireless technologies, SouthernLINC will be 
able to provide innovative services to Southern Company Services' 
electric company affiliates.
    13. Based on the record, we therefore find that it is in the public 
interest to amend Sec.  90.209 to allow EA-based 800 MHz SMR licensees 
to exceed the channel spacing and bandwidth limitation in Sec.  90.209 
in the 813.5-824/858.5-869 MHz band segment in National Public Safety 
Planning Advisory Committee (NPSPAC) regions where all 800 MHz public 
safety licensees in the region have completed band reconfiguration. In 
NPSPAC regions where reconfiguration is incomplete, we amend Sec.  
90.209 to allow EA-based 800 MHz SMR licensees to exceed the channel 
spacing and bandwidth limitation only in the 813.5-821/858.5-866 MHz 
band segment. Consistent with this Report and Order, EA-based 800 MHz 
SMR licensees will only be able to exceed the channel spacing and 
bandwidth limitation utilizing frequencies in 821-824/866-869 MHz once 
800 MHz public safety licensees have vacated this portion of the 800 
MHz band in a given NPSPAC region. Upon all 800 MHz public safety 
licensees in a region completing band reconfiguration, EA-based 800 MHz 
SMR licensees in the 821-824/866-869 MHz band would then be allowed to 
exceed the channel spacing and bandwidth limitation. As noted, pursuant 
to Sec.  90.614(c), the band segment 813.5-817/858.5-862 MHz is 
available for SMR operations only in the Southeastern United States.

B. Protection of 800 MHz Public Safety Licensees

    14. We recognize that the affected portion of the 800 MHz band is 
currently subject to an ongoing reconfiguration process to protect 800 
MHz public safety users from interference from incompatible commercial 
networks. We seek to ensure that the progress made to protect public 
safety licensees from interference is not affected by the flexibility 
we provide today, and adopt additional protections for 800 MHz public 
safety licensees.
    15. We find based on the record that the 30-day notification 
condition we proposed in the NPRM, with a minor modification, will help 
protect 800 MHz public safety licensees from the risk of harmful 
interference. We require all EA-based 800 MHz SMR licensees that seek 
to exceed the channel spacing and bandwidth limitation in Sec.  90.209 
to provide at least 30 days written notice to public safety licensees 
with base stations in a NPSPAC region where the EA-based 800 MHz SMR 
licensee intends to exceed the channel spacing and bandwidth 
limitation, and to public safety licensees with base stations within 
113 kilometers (70 miles) of an affected NPSPAC region border. Further, 
pursuant to a request by Concepts to Operations, Inc. (CTO), we modify 
our original proposal to require that the notice include the estimated 
date on which the EA-based 800 MHz SMR licensee will begin operations 
that exceed the channel spacing and bandwidth limitation. We find that 
by requiring EA-based 800 MHz SMR licensees to include the estimated 
date of operation in the notice, 800 MHz public safety licensees will 
be better able to monitor their networks for harmful interference on 
and around the date of a SMR licensee's expected transition from 
operations within the channel spacing and bandwidth limitation of Sec.  
90.209 to operations that

[[Page 33975]]

exceed the channel spacing and bandwidth limitation.
    16. We agree with commenters that the 30-day notice requirement 
will allow EA-based 800 MHz SMR licensees to use their spectrum more 
efficiently, while continuing to protect 800 MHz public safety 
licensees. Pursuant to this notice requirement, in the event that an 
800 MHz public safety licensee experiences harmful interference 
subsequent to receiving the required notice from an EA-based 800 MHz 
SMR licensee, the public safety licensee can more quickly identify or 
eliminate EA-based 800 MHz SMR operations as the source of 
interference. While this requirement will result in certain costs to 
EA-based licensees who must identify and timely notify affected public 
safety entities, we find that the resulting benefits--efficient 
resolution of interference to a public safety entity--offsets such 
costs. As SouthernLINC states, this condition ``will impose only a 
modest burden on ESMR licensees and will ensure that 800 MHz public 
safety licensees are fully informed, thus making it easier to swiftly 
resolve any issues or concerns that may arise.''
    17. The Association of Public-Safety Communications Officials-
International, Inc. (APCO) and CTO suggest additional conditions that 
they argue will help protect 800 MHz public safety licensees from 
harmful interference caused by EA-based 800 MHz SMR licensees that 
exceed the channel spacing and bandwidth limitation. APCO urges us to 
require EA-based 800 MHz SMR licensees that seek to exceed the channel 
spacing and bandwidth limitation in NPSPAC regions bordering Mexico to 
provide 30 days prior written notification to all public safety 
licensees in the border area, and that such notice should include a 24-
hour contact number in case interference occurs.
    18. We decline to modify the notice requirement as requested by 
APCO. APCO describes a scenario in which an EA-based 800 MHz SMR 
licensee exceeds the channel spacing and bandwidth limitation in a 
NPSPAC region that includes the Mexico border area, and is operating 
co-channel with an 800 MHz public safety licensee with a base station 
in the Mexico border area within the same NPSPAC region. In this 
scenario, the EA-based 800 MHz SMR licensee would be required under 
this Report and Order to transmit the 30-day notification to the public 
safety licensee in the Mexico border area because the licensees would 
be in the same NPSPAC region. We also note that, as described below, 
EA-based 800 MHz SMR licensees will still be obligated to meet all 
other technical requirements under Part 90, including co-channel 
separation distances, further protecting 800 MHz public safety 
licensees operating in the Mexico border area. We find that the notice 
requirement adopted herein is sufficient to provide additional 
protection to all 800 MHz public safety licensees from any harmful 
interference caused by wideband EA-based 800 MHz SMR operations, and 
find no reason to modify the notice requirement for 800 MHz public 
safety operations in the Mexico border area.
    19. Further, with respect to APCO's request that the notice be 
accompanied by a 24-hour contact number, Sprint Nextel notes that the 
24-hour reporting capability is currently available on the CMRS/public 
safety interference reporting Web site, required by the 800 MHz 
Reconfiguration Report and Order, in order to implement the 
interference resolution procedures set forth in Sec.  90.674 of the 
Commission's rules. Under that procedure, EA-based 800 MHz SMR 
licensees are required to respond to any notification of harmful 
interference reported by public safety licensees to that Web site 
within 24 hours. Although the procedure in Sec.  90.674 is not 
identical to APCO's proposal, we find that it is adequate to address 
APCO's concerns, as this Web site will enable public safety licensees 
to report any harmful interference events at any time, 24 hours a day, 
and licensees are required to respond to any notification of harmful 
interference within 24 hours of receipt. Further, we do not anticipate 
that permitting EA-based 800 MHz SMR licensees to operate with wider 
channel bandwidths than currently permitted under Sec.  90.209 will 
result in an increase in harmful interference to public safety 
licensees. Accordingly, we decline to impose additional, largely 
duplicative requirements on EA-based 800 MHz SMR licensees.
    20. CTO urges us to adopt an additional condition requiring EA-
based 800 MHz SMR licensees to transmit a second notice to affected 800 
MHz public safety licensees that would include the date on which 
operations will begin, the specific locations of antenna sites, and 
effective radiated power (ERP) for each antenna site. CTO argues that 
the additional notice would ensure that public safety entities continue 
to be notified of changes near their operations. While we find it 
appropriate to require licensees to include the approximate date of 
operation in their notifications, we decline to adopt the additional 
notice suggested by CTO. The notice requirement we adopt today is 
designed to provide notice to public safety licensees so that they may 
monitor their networks for any increase in harmful interference caused 
by EA-based 800 MHz SMR licensees that exceed the standard channel 
spacing and bandwidth limitation and take appropriate steps to initiate 
a process to remedy such interference should it occur. A notification 
requirement that includes antenna location or ERP would not further 
this goal. Therefore, we find that adopting a second notice requirement 
would result in little added benefit to public safety entities while 
imposing undue costs on EA-based 800 MHz SMR licensees.
    21. The NPRM also sought comment on proposals by the National 
Public Safety Telecommunications Council (NPSTC) and APCO seeking to 
impose a one megahertz separation between public safety operations and 
EA-based 800 MHz SMR operations that exceed the channel spacing and 
bandwidth limitation. In response to the NPRM, however, APCO 
acknowledges that the one megahertz separation is not warranted as the 
use of 1.25 MHz CDMA channels will result in a de facto buffer of one 
megahertz. We therefore decline to adopt these proposed conditions.
    22. We conclude that the 30-day notice condition, in combination 
with the limitation preventing EA-based 800 MHz SMR licensees from 
exceeding the channel spacing and bandwidth limitation in NPSPAC 
regions where reconfiguration is incomplete, adequately protects 800 
MHz public safety licensees from harmful interference.

C. Applicability and Sufficiency of Existing Part 90 Rules

    23. We note that, while we find that the 30-day notice requirement 
and the continued application of the channel spacing and bandwidth 
limitation in 821-824/866-869 MHz in NPSPAC regions where 
reconfiguration is incomplete will help protect public safety 
operations from harmful interference, these measures are supplements to 
the existing technical rules in part 90 governing EA-based 800 MHz SMR 
operations. We continue to believe that our current rules provide 
appropriate safeguards against harmful interference, and we emphasize 
that, in providing greater flexibility with respect to the channel 
spacing and bandwidth limitation, we are not removing or revising any 
other technical rules that enable licensees to coexist within the 800 
MHz band.
    24. To the contrary, EA-based 800 MHz SMR licensees subject to this 
Report and Order must continue to

[[Page 33976]]

comply with all other applicable rules in part 90. For example, 
licensees must continue to meet the OOBE requirement in Sec.  90.691 on 
the outer channels of the licensee's block and the interior channels of 
the licensee's block adjacent to channels occupied by incumbent 
licensees. EA-based 800 MHz SMR licensees also must abide by strict 
protections against unacceptable interference to non-cellular 800 MHz 
licensees under Sec.  90.672. SouthernLINC argues this rule effectively 
establishes an even more stringent out-of-band emission requirement 
than Sec.  90.691. As noted, EA-based 800 MHz SMR licensees must 
continue to meet the co-channel separation requirements in Sec.  
90.621. Additionally, EA-based 800 MHz SMR licensees are strictly 
responsible for abating any unacceptable interference under Sec.  
90.673, and must comply with the interference resolution procedures 
under Sec.  90.674.
    25. The Enterprise Wireless Alliance (EWA) states its assumption 
that because the Commission will allow EA-based 800 MHz SMR licensees 
to exceed the channel spacing and bandwidth requirement in 813.5-824/
858.5-869 MHz, such operation will not ``present interference concerns 
for future users of the Guard Band spectrum [817-818/861-862 MHz] 
either.'' The NPRM limited the applicability of the proposals to EA-
based 800 MHz SMR operations and the record demonstrates no specific 
concern regarding potential interference issues to hypothetical future 
users of the guard band. To the extent that the guard band is licensed 
in the future, the Commission will establish applicable technical and 
service rules as necessary at that time.
    26. EWA also suggests we clarify the applicability of the rule 
change adopted in this Report and Order in the Canada border area, 
because the existing protection from EA-based 800 MHz SMR licensees to 
adjacent site-based systems ``has always been calculated on a 
frequency-specific, co-channel contour basis.'' We reiterate that EA-
based 800 MHz licensees that exceed the channel spacing and bandwidth 
limitation are required to continue to comply with all other applicable 
Part 90 rules, including co-channel separation requirements. As Sprint 
Nextel acknowledges, any action permitting operations on bandwidths 
greater than 25 kHz does not change the interference protection 
requirements applicable to public safety and other non-ESMR licensees 
in and adjacent to the U.S.-Canada border areas. EA-based 800 MHz SMR 
licensees must continue to comply with part 90 rules regarding 
operation in the Canada and Mexico border areas, including any 
international agreements.
    27. Several commenters agree that, as a general matter, EA-based 
800 MHz SMR licensees' continued compliance with the part 90 rules will 
serve to protect all other 800 MHz licensees from harmful interference. 
For example, SouthernLINC argues that ``the ongoing obligation of 800 
MHz ESMR licensees to operate in strict compliance with these rules 
will continue to serve as yet another form of protection from 
interference for 800 MHz public safety licensee.'' RCA--The Competitive 
Carriers Association notes that the Commission ``has done much to 
ensure 800 MHz public safety licensees receive ample protection from 
broadband operations,'' specifically citing EA-based 800 MHz SMR 
licensees' obligation to abate interference to public safety systems 
and other 800 MHz licensees.
    28. In this regard, Sprint Nextel argues that it has taken steps 
beyond what the Commission's rules require to minimize the risk of 
interference to public safety licensees. Sprint Nextel asserts that it 
will incorporate ``extremely tight'' OOBE requirements into its CDMA 
equipment to minimize the risk of harmful interference in areas where 
reconfiguration is complete, as well as provide aggressive OOBE roll-
off protection for public safety systems operating in 821-824/866-869 
MHz. Sprint Nextel also asserts that numerous tests confirm that its 
CDMA deployment ``should further reduce the already-low risk of 
intermodulation interference to 800 MHz band public safety systems.''
    29. A group of nine public safety entities (Public Safety 
Licensees) argues that the technical analysis provided by Sprint Nextel 
on the record is an ``Intermodulation Interference test,'' and that 
without filtering specifications, the Public Safety Licensees are 
unable to verify Sprint Nextel's claimed OOBE protections. The Public 
Safety Licensees argue that without certainty regarding OOBE levels, 
the Commission should require a greater demonstration of non-
interference before revising the channel spacing and bandwidth 
limitation. In response, Sprint Nextel states that it has previously 
provided detailed information regarding its OOBE base station emissions 
mask requirements, as well as statements from each of its three 
equipment vendors affirming that Sprint Nextel's base stations are 
being designed to meet that mask. Sprint Nextel argues that the risk of 
interference to public safety or other non-ESMR 800 MHz operators from 
Sprint Nextel's planned 800 MHz broadband operations will be the same 
or less than its current iDEN deployment.
    30. We find no basis to conclude that EA-based 800 MHz SMR 
operations using bandwidths wider than 25 kHz must be subject to more 
stringent technical requirements than our rules in part 90 currently 
impose. We believe that our existing part 90 technical rules are 
sufficient to protect 800 MHz public safety licensees or other 800 MHz 
licensees from harmful interference from EA-based 800 MHz SMR 
operations that exceed the channel spacing and bandwidth limitation in 
Sec.  90.209. We believe that revising the part 90 channel spacing and 
bandwidth limitation is unlikely to cause 800 MHz public safety 
licensees to experience increased harmful intermodulation interference 
due in part to the fact that, other things being equal, the use of 
wider channels generally spreads the available power across a much 
wider bandwidth than narrowband technologies, thereby lowering the 
level of intermodulation interference that might occur. As Sprint 
Nextel affirms on the record, its CDMA operations may decrease 
intermodulation interference relative to its iDEN operations. We note 
that Sprint Nextel is permitted under waiver or special temporary 
authority to exceed the channel spacing and bandwidth limitation 
prescribed by Sec.  90.209 in nine different markets covering large 
population centers. Sprint Nextel has been able to exceed the channel 
spacing or bandwidth limitation in five of the markets for 11 months. 
We have not received any complaints of interference from any 800 MHz 
licensee as a result of Sprint Nextel's operations in any of the 
markets to date. Accordingly, we believe 800 MHz public safety 
licensees will not be subject to increased harmful interference when 
EA-based 800 MHz SMR licensees comply with or exceed the protections 
under existing technical requirements in part 90.
    31. The Public Safety Licensees also assert that the Commission 
should proactively ensure that interference will not occur, rather than 
have 800 MHz licensees rely on the interference abatement process in 
Sec.  90.673 if interference occurs. They argue that, although the 
interference may be resolved, the public safety licensee is stuck with 
the costs of finding, investigating, and participating in resolving 
interference under Sec.  90.673. As a general matter, our part 90 rules 
are designed to proactively limit the possibility of harmful 
interference. Section 90.673 was created to further protect public 
safety licensees in the unforeseen event that harmful

[[Page 33977]]

interference does occur, and we find no reason to revisit this rule in 
this Report and Order. Absent information showing that 800 MHz public 
safety licensees will experience harmful interference as a result of 
this rule change, and such interference will result in significant 
costs, we find the measures taken in this Report and Order reasonably 
balance the interests of EA-based 800 MHz SMR licensees and 800 MHz 
public safety entities.

D. Other Issues

    32. Finally, CTO and Thomas Michael Roskos, Jr. (Roskos) suggest we 
afford additional flexibility to licensees other than EA-based 800 MHz 
SMR licensees. CTO urges us to ``treat all [800 MHz commercial] 
licensee's [sic] equally and to develop plans which allow `contiguous 
use of spectrum' to licensees to be able to provide similar and 
competing services in the Band.'' Roskos argues that we should find 
that any licensee under part 90 with contiguous spectrum should be able 
to aggregate the channels and use them on a wideband basis so long as 
the operations do not raise OOBE above an unacceptable level. We find 
insufficient record support for these requests, and we decline to 
expand the scope of this Report and Order. As explained herein, this 
Report and Order is based upon the specific proposals in the NPRM and 
the record developed in response to the NPRM, and applies only to EA-
based 800 MHz SMR operations in the 813.5-824/858.5-869 MHz segment of 
the 800 MHz band.

E. Conclusion

    33. We find that the record strongly supports our decision to 
provide channel spacing and bandwidth flexibility to EA-based 800 MHz 
SMR licensees, and that such flexibility will promote the deployment of 
advanced wireless technologies. The record demonstrates that the 
minimal costs incurred by EA-based 800 MHz SMR licensees and 800 MHz 
public safety licensees are far outweighed by the benefits generated 
through the elimination of this legacy rule, including improving 
spectrum efficiency and the availability of wireless broadband. We also 
find that the existing protections in our rules, coupled with the new 
protections added through this Report and Order are sufficient to limit 
the potential for harmful interference caused by EA-based 800 MHz SMR 
licensee operations at greater than 25 kHz channels with greater than 
20 kHz bandwidth.

III. Procedural Matters

A. Final Regulatory Flexibility Analysis

    34. As required by the Regulatory Flexibility Act of 1980, the 
Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) 
of the possible significant economic impact on small entities of the 
policies and rules addressed in this document.

B. Final Paperwork Reduction Act Analysis

    35. This document adopts new or revised information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA). The 
requirements were submitted to the Office of Management and Budget 
(OMB) for review under sec. 3507 of the PRA. The Commission published 
notice of the information collection in the Federal Register, 77 FR 
18991, Mar. 29, 2012, and invited comment on the new information 
collection that we adopt in this document. The requirements will not go 
into effect until OMB has approved the requirements and the Commission 
has published a notice announcing the effective date of the information 
collection requirements. In addition, we note that pursuant to the 
Small Business Paperwork Relief Act of 2002, we previously sought 
specific comment on how the Commission might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''

C. Congressional Review Act

    36. The Commission will send a copy of this Report and Order to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act.

IV. Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included 
in the Notice of Proposed Rulemaking in WT Docket Nos. 11-110 and 12-
64. The Commission sought written public comment on the proposals in 
these dockets, including comment on the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    37. The rule adopted in this Report and Order eliminates a legacy 
channel spacing and bandwidth limitation governing Economic Area (EA)-
based 800 MHz specialized mobile radio (SMR) licensees. This rule 
provides the licensees with the flexibility to deploy competitive 
wireless services, while also continuing to protect 800 MHz public 
safety licensees and other 800 MHz licensees from harmful interference.
    38. The rule allows EA-based 800 MHz SMR licensees in the 813.5-
824/858.5-869 MHz band segment to exceed the channel spacing and 
bandwidth limits in Sec.  90.209 of the Commission's rules, subject to 
conditions. EA-based 800 MHz SMR licensees may exceed the channel 
spacing and bandwidth limitation in the 813.5-824/858.5-869 MHz band 
segment of the 800 MHz band in National Public Safety Planning Advisory 
Committee (NPSPAC) regions where 800 MHz reconfiguration is complete. 
In NPSPAC regions where 800 MHz reconfiguration is incomplete, EA-based 
800 MHz licensees may exceed the channel spacing and bandwidth 
limitation only in 813.5-821/858.5-866 MHz. Upon all 800 MHz public 
safety licensees in a region completing band reconfiguration, EA-based 
800 MHz SMR licensees in 821-824/866-869 MHz may also exceed the 
channel spacing and bandwidth limitation. We note that, pursuant to 
Sec.  90.614(c) of the Commission's rules, the band segment 813.5-817/
858.5-862 MHz is available for SMR operations only in the Southeastern 
United States. We also require EA-based 800 MHz SMR licensees to 
provide 30 days written notice to 800 MHz public safety licensees with 
base stations in a NPSPAC region where an EA-based 800 MHz SMR licensee 
intends to exceed the channel spacing and bandwidth limitation, and to 
public safety licensees with base stations within 113 kilometers (70 
miles) of an affected NPSPAC region border. Finally, we require such 
notice to include the estimated date the EA-based 800 MHz SMR 
licensee's operations will exceed the channel spacing requirement and 
bandwidth limitation.
    39. We believe this rule will reduce barriers to innovation and 
investment and allow EA-based 800 MHz SMR licensees to deploy 
competitive wireless services, to consumers' benefit. The record 
demonstrates support for the rule change, and demonstrates that it will 
result in significant benefits while imposing minimal costs on EA-based 
800 MHz SMR licensees, 800 MHz public safety licensees, or other 800 
MHz licensees

[[Page 33978]]

B. Statement of Significant Issues Raised by Public Comments in 
Response to the IRFA

    40. There were no public comments filed that specifically addressed 
the rules and policies proposed in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    41. Pursuant to the Small Business Jobs Act of 2010, the Commission 
is required to respond to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration, and to provide a 
detailed statement of any change made to the proposed rules as a result 
of those comments. The Chief Counsel did not file any comments in 
response to the proposed rules in this proceeding.

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

    42. 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.
    43. 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.
    44. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, such firms were within 
the now-superseded categories of Paging and Cellular and Other Wireless 
Telecommunications. Under the present and prior categories, the SBA has 
deemed a wireless business to be small if it has 1,500 or fewer 
employees. For this category, census data for 2007 show that there were 
1,383 firms that operated for the entire year. Of this total, 1,368 
firms had 999 or fewer employees, and 15 had 1,000 employees or more. 
Similarly, according to Commission data, 413 carriers reported that 
they were engaged in the provision of wireless telephony, including 
cellular service, Personal Communications Service (PCS), and 
Specialized Mobile Radio (SMR) Telephony services. Of these, an 
estimated 261 have 1,500 or fewer employees, and 152 have more than 
1,500 employees. Consequently, the Commission estimates that 
approximately half or more of these firms can be considered small. 
Thus, using available data, we estimate that the majority of wireless 
firms can be considered small.
    45. Specialized Mobile Radio. The Commission awards small business 
bidding credits in auctions for Specialized Mobile Radio (SMR) 
geographic area licenses in the 800 MHz and 900 MHz bands to entities 
that had revenues of no more than $15 million in each of the three 
previous calendar years. The Commission awards very small business 
bidding credits to entities that had revenues of no more than $3 
million in each of the three previous calendar years. The SBA has 
approved these small business size standards for the 800 MHz and 900 
MHz SMR Services. The Commission has held auctions for geographic area 
licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction was 
completed in 1996. Sixty bidders claiming that they qualified as small 
businesses under the $15 million size standard won 263 geographic area 
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 
200 channels was conducted in 1997. Ten bidders claiming that they 
qualified as small businesses under the $15 million size standard won 
38 geographic area licenses for the upper 200 channels in the 800 MHz 
SMR band. A second auction for the 800 MHz band was conducted in 2002 
and included 23 BEA licenses. One bidder claiming small business status 
won five licenses.
    46. The auction of the 1,053 800 MHz SMR geographic area licenses 
for the General Category channels was conducted in 2000. Eleven bidders 
that won 108 geographic area licenses for the General Category channels 
in the 800 MHz SMR band qualified as small businesses under the $15 
million size standard. In an auction completed in 2000, a total of 
2,800 Economic Area licenses in the lower 80 channels of the 800 MHz 
SMR service were awarded. Of the 22 winning bidders, 19 claimed small 
business status and won 129 licenses. Thus, combining all three 
auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR 
band claimed status as small business.
    47. In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations in 
the 800 and 900 MHz bands. We do not know how many firms provide 800 
MHz or 900 MHz geographic area SMR pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of 
no more than $15 million. One firm has over $15 million in revenues. In 
addition, we do not know how many of these firms have 1,500 or fewer 
employees. We assume, for purposes of this analysis, that all of the 
remaining existing extended implementation authorizations are held by 
small entities, as that small business size standard is approved by the 
SBA.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    48. The rule provides regulatory flexibility to all EA-based 800 
MHz SMR licensees. The rule will impose limited reporting or 
recordkeeping requirements to the extent an EA-based 800 MHz SMR 
licensee seeks to exceed the channel spacing and bandwidth limitation 
in Sec.  90.209 of the Commission's rules. In such cases, the licensee 
must provide 30 days advanced written notice to all public safety 
licensees with a base station in an affected NPSPAC region and within 
113 kilometers (70 miles) of the border of an affected NPSPAC region. 
This notice must include the estimated date that the EA-based 800 MHz 
SMR licensee's operations will exceed the channel spacing and bandwidth 
limitation. Otherwise, the rule will impose only a small compliance 
burden.

[[Page 33979]]

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

    49. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    50. The Report and Order is deregulatory in nature and imposes only 
a minor compliance requirement on all affected entities, including 
small entities. In recognition of the resources available to small 
entities, and in the interest of simplified compliance obligations, the 
Report and Order does not mandate any specific form or manner in which 
entities must comply with the reporting requirement. Specifically, the 
Report and Order requires EA-based 800 MHz SMR licensees to provide 
written notice to all public safety licensees with a base station in an 
affected NPSPAC region and within 113 kilometers (70 miles) of the 
border of an affected NPSPAC region if the licensee intends to exceed 
the channel spacing and bandwidth limitation. This notice must include 
the estimated date that the EA-based 800 MHz SMR licensee's operations 
will exceed the channel spacing and bandwidth limitation. Licensees 
have the flexibility to provide written notice through whatever means 
the licensee chooses. We believe this notice is necessary to ensure 
that public safety licensees are aware of the operation and can 
actively monitor for any interference issues that may arise. While we 
strive to provide flexibility to small entities, because we believe 
that protection of public safety licensees is essential and in the 
public interest, we do not adopt any exemption for small entities.

G. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Rules

    51. None.

V. Ordering Clauses

    52. Pursuant to the authority contained in sections 1, 2, 4(i), 
4(j), 301, 302, 303, 307, and 308 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302a, 303, 307, and 
308, this Report and Order is adopted and that part 90 of the 
Commission's rules, 47 CFR part 90, is amended as set forth herein.
    53. The rules adopted herein will become effective July 9, 2012.
    54. The Commission's Consumer & Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Report and 
Order, including the Final Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 90

    Business and industry, Common carriers, Communications equipment, 
Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons set forth in the preamble, the Federal 
Communications Commission amends part 90 of Title 47 of the Code of 
Federal Regulations (CFR) as set forth below:

PART 90--PRIVATE LAND MOBILE RADIO SERVICE

0
1. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


0
2. Section 90.209 is amended by adding paragraph (b)(7) to read as 
follows:


Sec.  90.209  Bandwidth limitations.

* * * * *
    (b) * * *
    (7) Economic Area (EA)-based licensees in frequencies 817-824/862-
869 MHz (813.5-824/858.5-869 MHz in the counties listed in Sec.  
90.614(c)) may exceed the standard channel spacing and authorized 
bandwidth listed in paragraph (b)(5) of this section in any National 
Public Safety Planning Advisory Committee Region when all 800 MHz 
public safety licensees in the Region have completed band 
reconfiguration consistent with this part. In any National Public 
Safety Planning Advisory Committee Region where the 800 MHz band 
reconfiguration is incomplete, EA-based licensees in frequencies 817-
821/862-866 MHz (813.5-821/858.5-866 MHz in the counties listed in 
Sec.  90.614(c)) may exceed the standard channel spacing and authorized 
bandwidth listed in paragraph (b)(5) of this section. Upon all 800 MHz 
public safety licensees in a National Public Safety Planning Advisory 
Committee Region completing band reconfiguration, EA-based 800 MHz SMR 
licensees in the 821-824/866-869 MHz band may exceed the channel 
spacing and authorized bandwidth in paragraph (b)(5) of this section. 
Licensees authorized to exceed the standard channel spacing and 
authorized bandwidth under this paragraph must provide at least 30 days 
written notice prior to initiating such service in the bands listed 
herein to every 800 MHz public safety licensee with a base station in 
an affected National Public Safety Planning Advisory Committee Region, 
and every 800 MHz public safety licensee with a base station within 113 
kilometers (70 miles) of an affected National Public Safety Planning 
Advisory Committee Region. Such notice shall include the estimated date 
upon which the EA-based 800 MHz SMR licensee intends to begin 
operations that exceed the channel spacing and authorized bandwidth in 
paragraph (b)(5) of this section.

[FR Doc. 2012-13872 Filed 6-7-12; 8:45 am]
BILLING CODE 6712-01-P