[Federal Register Volume 78, Number 5 (Tuesday, January 8, 2013)]
[Proposed Rules]
[Pages 1166-1188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00157]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 27
[WT Docket No. 12-357; FCC 12-152]
Service Rules for the Advanced Wireless Services in the H Block--
Implementing Section 6401 of the Middle Class Tax Relief and Job
Creation Act of 2012 Related to the 1915-1920 MHz and 1995-2000 MHz
Bands
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Commission proposes rules for the
Advanced Wireless Services (AWS) H Block that would make available ten
megahertz of spectrum for flexible use. The proposal would extend the
widely-deployed Personal Communications Services (PCS) band, which is
used by the four national providers as well as regional and rural
providers to offer mobile service across the nation. The additional
spectrum for mobile use will help ensure that the speed, capacity, and
ubiquity of the nation's wireless networks keeps pace with the
skyrocketing demand for mobile service.
DATES: Submit comments on or before February 6, 2013. Submit reply
[[Page 1167]]
comments on or before March 6, 2013. Written comments on the proposed
information collection requirements, subject to the Paperwork Reduction
Act (PRA) of 1995, Public Law 104-13, should be submitted on or before
March 11, 2013.
ADDRESSES: Federal Communications Commission, 445 12th Street SW.,
Washington, DC 20554. 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, Office of Management and Budget,
via email to [email protected] or via fax at 202-395-
5167. You may submit comments, identified by FCC 12-152, or by WT
Docket No. 12-357, by any of the following methods: Federal eRulemaking
Portal: http://www.regulations.gov. Follow the instructions for
submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
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.
Availability of Documents. Comments, reply comments, and
ex parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-A257, Washington,
DC 20554. These documents will also be available via ECFS. Documents
will be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat.
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: Peter Daronco of the Broadband
Division, Wireless Telecommunications Bureau, at (202) 418-BITS. For
additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, contact
Judith B. Herman at (202) 418-0214, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 12-152, adopted on December 11, 2012, and
released on December 17, 2012. The full text of this document is
available for inspection and copying during normal business hours in
the FCC Reference Information Center, Room CY-A257, 445 12th Street,
SW., Washington, DC 20554. The complete text may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC
20554, (202) 488-5300, facsimile (202) 488-5563, or via email at
[email protected]. The complete text is also available on the
Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachment/FCC-12-152A1doc. Alternative formats (computer diskette,
large print, audio cassette, and Braille) are available by contacting
Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via email to
[email protected].
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998). All filings should
reference the docket numbers in this proceeding, FCC 12-152, or by WT
Docket No. 12-357.
[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. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
[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
8:00 a.m. to 7:00 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.
[ssquf] 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).
[ssquf] Document FCC 12-152 contains proposed information
collection requirements subject to the PRA. It will be submitted to the
Office of Management and Budget (OMB) for review under section 3507 of
the PRA. OMB, the general public, and other Federal agencies are
invited to comment on the proposed information collection requirements
contained in this document. PRA comments should be submitted to Judith
B. Herman at (202) 418-0214, or via the Internet at [email protected] and to
Nicholas A. Fraser, Office of Management and Budget, via email to
[email protected] or via fax at 202-395-5167.
[ssquf] To view a copy of this information collection request (ICR)
submitted to OMB: (1) Go to the Web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web page called ``Currently
Under Review,'' (3) click on the downward-pointing arrow in the
``Select Agency'' box below the ``Currently Under Review'' heading, (4)
select ``Federal Communications Commission'' from the list of agencies
presented in the ``Select Agency'' box, (5) click the ``Submit'' button
to the right of the ``Select Agency'' box, (6) when the list of FCC
ICRs currently under review appears, look for the title of this ICR and
then click on the ICR Reference Number. A copy of the FCC submission to
OMB will be displayed.
[ssquf] Initial Paperwork Reduction Act Analysis
This document contains proposed new or modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we
[[Page 1168]]
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
OMB Control Number: 3060-[XXXX].
Title: Sections 1.946, 1.949, 1.2105(a), etc.--Service Rules for
Advanced Wireless Services (AWS) H Block.
Form Number: N/A.
Type of Review: New collection.
Respondents: Business or other for-profit entities, not-for-profit
institutions, and state, local, or tribal government.
Number of Respondents: 50 respondents; 50 responses.
Estimated Time per Response: .25 hours to .5 hours.
Frequency of Response: Annual, one time, and on occasion reporting
requirements; recordkeeping requirement; and third party disclosure
requirement.
Obligation to Respond: Required to obtain or retain benefits.
Statutory authority for the information collection is contained in 15
U.S.C. 79 et seq.; 47 U.S.C. sections 151, 154(i), 154(j), 155, 157,
225, 227, 303(r), 309, 1404, and 1451.
Total Annual Burden: 14 hours.
Total Annual Cost: N/A.
Privacy Impact Assessment: N/A.
Nature and Extent of Confidentiality: There is no need for
confidentiality.
Needs and Uses: The Commission is submitting this information
collection to the Office of Management and Budget as a new collection.
The Notice of Proposed Rulemaking (NPRM) proposes rules for the
Advanced Wireless Services (AWS) H Block to make available ten
megahertz of spectrum for flexible use, extending the current Personal
Communications Services (PCS) band, which is used by the four national
providers as well as regional and rural providers to offer mobile
service across the Nation. The NPRM begins the Commission's
implementation of the Congressional directive in the Middle Class Tax
Relief and Job Creation Act of 2012 (Spectrum Act) to grant new initial
licenses for the 1915-1920 MHz (Lower H Block) and 1995-2000 MHz (Upper
H Block) bands through a system of competitive bidding--unless doing so
would cause harmful interference to commercial mobile service licensees
in the 1930-1995 MHz (PCS downlink) band.
Summary
I. Introduction
1. We propose rules for the Advanced Wireless Services (AWS) H
Block that would make available ten megahertz of spectrum for flexible
use. The proposal would extend the widely-deployed Personal
Communications Services (PCS) band, which is used by the four national
providers as well as regional and rural providers to offer mobile
service across the nation. The additional spectrum for mobile use will
help ensure that the speed, capacity, and ubiquity of the nation's
wireless networks keeps pace with the skyrocketing demand for mobile
service.
2. The Commission's action is a first step in implementing the
Congressional directive in the Middle Class Tax Relief and Job Creation
Act of 2012 (Spectrum Act) that we grant new initial licenses for the
1915-1920 MHz and 1995-2000 MHz bands (the Lower H Block and Upper H
Block, respectively) through a system of competitive bidding--unless
doing so would cause harmful interference to commercial mobile service
licensees in the 1930-1995 MHz (PCS downlink) band (collectively, the
Lower H Block and Upper H Block are referred to as the ``H Block'').
II. Discussion
3. To implement the Spectrum Act provisions pertaining to the H
Block, and in keeping with our goal of expanding the amount of spectrum
available for wireless broadband services, we propose terrestrial
service rules for the H Block that would generally follow the
Commission's part 27 rules. In some instances, we propose rules that
are modified from part 27 to account for issues unique to the H Block,
particularly to protect PCS licensees from harmful interference. With
this NPRM, we seek comment on a number of proposals regarding the
licensing, use, and assignment of the spectrum, including the costs and
benefits of the proposals.
4. Although the Commission previously sought comment on many of
these issues in the AWS-2 NPRM, Service Rules for Advanced Wireless
Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-
2180 MHz Bands, 69 FR 63489 (Nov. 2, 2004) (AWS-2 NPRM), and the 2008
FNPRM, Service Rules for Advanced Wireless Services in the 2155-2175
MHz Band; Service Rules for Advanced Wireless Services in the 1915-1920
MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, 73 FR 35995
(June 25, 2008) (2008 FNPRM), wireless broadband technologies and the
wireless industry have evolved since the Commission last sought comment
on these issues such that, in our assessment, the development of a
fresh record is warranted. As a result, we will adopt H Block rules
based on the record developed in response to this NPRM (WT Docket No.
12-357). Parties may re-file in this docket earlier comments with any
necessary updates.
5. For each of the issues identified below, we seek comment on the
most efficient manner to address the issue. Commenters should also
identify the various costs and benefits associated with a particular
proposal. We ask that commenters take into account only those costs and
benefits that directly result from the implementation of the particular
rules that could be adopted, including any proposed requirement or
potential alternative requirement. Further, to the extent possible,
commenters should provide specific data and information, such as actual
or estimated dollar figures for each specific cost or benefit
addressed, along with a description of how the data or information was
calculated or obtained, and any supporting documentation or other
evidentiary support.
A. Spectrum Act Provisions for 1915-1920 MHz and 1995-2000 MHz
6. We discuss the Spectrum Act's four main statutory elements
related to the H Block--allocation for commercial use, flexible use,
assignment of licenses, and a determination regarding interference--in
greater detail below.
1. Allocation for Commercial Use
7. Section 6401 of the Spectrum Act requires the Commission to
allocate the 1915-1920 MHz and 1995-2000 MHz bands for commercial use.
The Spectrum Act does not define the phrase ``allocate [the H Block]
for commercial use.'' When this phrase is read in the context of the
Spectrum Act as a whole, we conclude it requires the Commission to make
any changes necessary to, or otherwise ensure that, the Non-Federal
Table of Allocations reflects that the spectrum identified in section
6401 can be used commercially and licensed to non-federal entities
under flexible use service rules through a system of competitive
bidding. All of the H Block spectrum is within the 1850-2000 MHz band,
which is allocated exclusively for non-federal, fixed and mobile use on
a primary basis and designated for use in the commercial PCS/AWS bands.
We believe the Commission's prior allocation of the H Block is fully
consistent with section 6401's allocation language because the existing
allocation is the broadest allocation possible consistent with
international allocations. We further read section 6401 as directing
the Commission to maintain this existing allocation. Given the
requirement to license under flexible use service rules, we do not read
the requirement to allocate the H
[[Page 1169]]
Block for commercial use to specifically limit eligible uses to
commercial uses.
8. Therefore, we tentatively conclude that the existing allocation
of the H Block for non-federal fixed and mobile use on a primary basis
meets the allocation requirement of section 6401(b)(1)(A) for the H
Block, and seek comment on this tentative conclusion. We seek comment
on whether there are any additional actions the Commission should take
to comply with the requirement to allocate the H Block for commercial
use. We ask commenters that believe further action is needed to comply
with Congress's mandate to detail what other action is necessary,
including the costs and benefits of such action.
2. Flexible Use
9. Consistent with the Spectrum Act's mandate that we license the H
Block under flexible use service rules, we propose service rules for
the H Block that permit a licensee to employ the spectrum for any non-
Federal use permitted by the United States Table of Frequency
Allocations, subject to the Commission's part 27 flexible use and other
applicable rules (including service rules to avoid harmful
interference). Congress recognized the potential benefits of flexible
spectrum allocations and amended the Communications Act in 1997 to add
section 303(y), which grants the Commission the authority to adopt
flexible allocations if certain factors are met. Thus, we propose that
the H Block may be used for any fixed or mobile service that is
consistent with the allocations for the band. If commenters think any
restrictions are warranted, they should describe why such restrictions
are needed, quantify the costs and benefits of any such restrictions,
and describe how such restrictions would comport with the statutory
mandates of section 303(y) of the Communications Act and section 6401
of the Spectrum Act.
3. Assignment of Licenses
10. Section 6401(b) of the Spectrum Act requires the Commission to
assign initial licenses for the 1915-1920 and 1995-2000 MHz bands
through a system of competitive bidding pursuant to section 309(j) of
the Communications Act. Accordingly, below, we seek comment on
proposals regarding competitive bidding rules that would apply to
resolve any mutually exclusive applications accepted for H Block
licenses.
4. Determination of No Harmful Interference to the 1930-1995 MHz Band
11. The Commission is prohibited from granting initial licenses
under the Spectrum Act for the H Block if the Commission determines
that the H Block ``cannot be used without causing harmful
interference'' to commercial mobile licensees in the 1930-1995 MHz band
(PCS downlink band). We note that the Spectrum Act does not define the
term ``harmful interference,'' and we propose to use the existing
definition of ``harmful interference'' in the Commission's rules. Under
the Commission's rules harmful interference is ``[i]nterference which
endangers the functioning of a radionavigation service or of other
safety services or seriously degrades, obstructs, or repeatedly
interrupts a radiocommunication service operating in accordance with
[the International Telecommunications Union] Radio Regulations.''
12. Upper H Block. As detailed in the Band Plan section below, the
Commission allocated this spectrum for fixed and mobile use in 2003,
and it designated it for PCS/AWS base station operations and proposed
service rules to that effect in 2004. During the eight years that WT
Docket No. 04-356 has been pending, no party has filed technical data
and/or analysis indicating that base station operations in the Upper H
Block would cause harmful interference to licensees in the PCS downlink
band. Accordingly, we tentatively conclude that licensing the Upper H
Block under flexible use service rules will not cause harmful
interference to commercial mobile licensees in the 1930-1995 MHz band.
We seek comment on this tentative conclusion.
13. Lower H Block. In 2004 the Commission designated this spectrum
for PCS/AWS mobile operations; paired with Upper H Block, after
concluding that harmful interference from Lower H Block to the PCS
downlink band could be addressed through appropriate service rules. In
WT Docket No. 04-356, commenters vigorously debated the power and out-
of-band emission limits necessary to avoid interference to mobiles
receiving in the PCS downlink band. Four PCS licensees proposed
technical rules for Lower H Block to avoid interference to PCS and at
least one PCS licensee continues to advocate for one of the earlier
proposals. As discussed in detail below, we propose a band plan and are
seeking comment on technical rules to avoid interference, including the
earlier proposals by PCS licensees. Accordingly, we tentatively
conclude that it will be possible to auction and license the Lower H
Block under flexible use service rules without causing harmful
interference to commercial mobile licensees in the PCS downlink (1930-
1995 MHz) band. We seek comment on this tentative conclusion. Regarding
the proposed band plan and technical issues discussed in the sections
below, we ask that commenters proposing alternative band plans and/or
technical rules--including any alternative proposals that have been
previously submitted to the Commission--provide detailed analyses of
how their proposal will avoid harmful interference to licensees in the
PCS downlink band.
14. Alternatives, if Harmful Interference to PCS. If, contrary to
our expectation, the record results in a determination that licensing
the Upper H Block, the Lower H Block, or both, would cause harmful
interference to licensees in the PCS downlink band, section 6401(b)(4)
of the Spectrum Act nullifies the initial requirement in section
6401(b)(1)(a) that the Commission to allocate the interfering spectrum
for commercial use. We do not, however, believe that Congress intended
section 6401(b)(4)(a) to disturb allocations adopted prior to the
Spectrum Act. Rather, Congress intended section 6401(b)(4) to avoid
harmful interference to the millions of existing customers of PCS
licensees that might otherwise result from Commission actions
implementing the requirements in section 6401(b)(1) related to H Block.
Therefore, if we determine that the Lower H Block, the Upper H Block,
or both, cannot be used without causing harmful interference to PCS
licensees, we tentatively conclude that we may not under the Spectrum
Act auction and grant initial licenses, subject to flexible use service
rules, for the interfering spectrum. If we determine that half of the H
Block cannot be auctioned and licensed, we tentatively conclude that
the statute requires us to auction and license the half of the H Block
that would not cause harmful interference to PCS downlinks (i.e.,
either the Upper or Lower H Block). Accordingly, we ask commenters to
address what should be done in the alternative with the H Block or any
portion of the H Block that we determine cannot be licensed under the
Spectrum Act due to harmful interference to licensees in the PCS
downlink band. In particular, should any such spectrum be designated
for Unlicensed PCS (UPCS)?
[[Page 1170]]
B. Band Plan
15. In the following sections, we propose to license the H Block as
paired 5 megahertz blocks, with the Upper H Block used for high-power
base stations and the Lower H Block used for mobile and low power fixed
operations. We further propose to license the H Block by Economic
Areas. We invite commenters to propose other licensing areas including
for the Gulf of Mexico.
1. Block Configuration
16. In 2004, the Commission adopted the AWS Sixth Report and Order,
Amendment of Part 2 of the Commission's Rules to Allocate Spectrum
Below 3 GHz for Mobile and Fixed Services to Support the Introduction
of New Advanced Wireless Services, Including Third Generation Wireless
Systems, 69 FR 62615 (Oct. 27, 2004), designating the H Block for
licensed fixed and mobile services, including advanced wireless
services, and pairing the 1915-1920 MHz band with the 1995-2000 MHz
band. The Commission decided to pair the 1915-1920 MHz and 1995-2000
MHz bands because it found that pairing this spectrum would promote
efficient use of the spectrum, would allow for the introduction of
high-value services, and was otherwise preferable to the other options
that had been put forth.
17. In addition, the Commission contemplated that mobile operations
would be conducted in the Lower H Block. The Commission reasoned that
using the Lower H Block for low power operations would be advantageous
because the adjacent 1910-1915 MHz PCS band is used for mobile
operations and using the Lower H Block for high power base station
operations could result in harmful interference to the PCS band.
18. We see no reason to diverge from the reasoning in the AWS Sixth
Report and Order. Accordingly, we tentatively conclude that the 1915-
1920 MHz and 1995-2000 MHz bands should be paired as a single band. In
addition, we propose that high power base station operations will be
prohibited in the Lower H Block. We seek comments on the costs and
benefits of licensing the 1915-1920 MHz and 1995-2000 MHz bands in this
manner. We also seek comment on alternate configurations of the H
Block. Commenters should address any technical issues implicated in an
alternate band plan, and should discuss the costs and benefits of any
alternative proposal.
2. Service Area
19. Geographic Area Licensing: We propose to adopt a geographic
area licensing scheme for the H Block because it is well-suited for the
types of fixed and mobile services that would likely be deployed in
these bands. Additionally, geographic-area licensing is consistent with
the Commission's licensing approach for the AWS-1, Broadband PCS,
Commercial 700 MHz bands, and AWS-4 bands. Based on the Commission's
experience administering these services, geographic area licensing: (1)
Provides licensees with substantial flexibility to respond to market
demand, which results in significant improvements in spectrum
utilization; (2) permits economies of scale because licensees can
coordinate usage across an entire geographic area to maximize spectrum
use; and, (3) reduces the regulatory burdens and transaction costs
because wide-area licensing does not require site-by-site approval so a
licensee can aggregate its service territories without incurring the
administrative costs and delays associated with site-by-site licensing.
We seek comment on this approach, including the costs and benefits of
adopting a geographic area licensing scheme.
20. In the event that commenters do not support geographic-area
licensing for the H Block, commenters should explain their position and
identify any alternative licensing proposals that they support,
including the costs and benefits associated with such alternative
proposals. Commenters should also address how an alternative licensing
approach would be consistent with the statutory requirement to assign
licenses in the H Block through competitive bidding and the statutory
objectives that the Commission is required to promote in establishing
methodologies for competitive bidding.
21. Service Area Size. We seek to adopt a service area size for the
H Block that meets several statutory goals. These include facilitating
access to spectrum by both small and large providers, providing for the
efficient use of the spectrum, encouraging deployment of wireless
broadband services to consumers, especially those in rural areas, and
promoting investment in and rapid deployment of new technologies and
services consistent with our obligations under section 309(j) of the
Communications Act.
22. To accomplish these goals, we propose to license the H Block on
an Economic Area (EA) basis. The adjacent bands, both PCS and AWS-4,
are licensed on an EA basis. EAs are small enough to provide spectrum
access opportunities for smaller carriers but also may be aggregated up
to larger license areas to achieve economies of scale. We seek comment
on this approach and ask commenters to discuss and quantify the
economic, technical, and other public interest considerations of any
particular geographic scheme for this band, as well as the impact that
any such scheme would have on rural service and competition.
23. We also seek comment on whether we should license the H Block
on a nationwide basis. We seek comment on the extent to which
nationwide licenses maximize or limit the opportunity for licensees to
provide the widest array of services, and whether nationwide licenses
provide the necessary incentives to foster the growth of existing
technologies and the development of new technologies. We also ask
commenters to compare the advantages and disadvantages of nationwide
licensing to those of licensing by EAs, including economic and
financial considerations.
24. In response to the AWS-2 NPRM, some commenters argued that
licensing the H Block using smaller geographic areas than EAs would
accommodate its possible use as complementary spectrum to existing PCS
offerings. Other commenters agreed and also noted that small and rural
wireless providers would benefit if the Commission licensed the H Block
using smaller geographic areas than EAs. Would licensing the H Block by
areas smaller than EAs (e.g., Cellular Market Areas comprising
Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs))
facilitate its use by smaller and rural operators? Would the benefits
of smaller licenses outweigh any potential diseconomies of scale? We
also seek comment on whether we should license the H Block by BTAs and
the associated costs and benefits of this approach. Are there other
geographic licensing methods that would better meet the stated goals
for this band?
3. Licensing the Gulf of Mexico
25. In addition, we seek comment on how to license the Gulf of
Mexico. Should the Gulf of Mexico be part of another service area(s) or
should we separately license a service area(s) to cover the Gulf of
Mexico? Are there any public interest benefits that would be served by
creating a Gulf of Mexico licensing area? Further, would the interests
of the land based licensees be protected if we proceeded to license the
Gulf of Mexico? Commenters that advocate a separate service area(s) to
cover the Gulf of Mexico should discuss what boundaries should be used,
and whether special interference protection criteria or performance
requirements are
[[Page 1171]]
necessary due to the unique radio propagation characteristics and
antenna siting challenges that exist for Gulf licensees.
C. Technical Issues
26. As discussed above, we are proposing that the Upper H Block be
used for base station (i.e., high power) operations, and the Lower H
Block for mobile and other low-power operations. In this section we
consider whether technical standards generally applicable to AWS and
PCS stations are appropriate for these bands, or whether different
standards are necessary to provide interference protection to services
operating in adjacent spectrum bands. In light of the Spectrum Act, and
our assessment of the relevant public interest benefits, a key goal in
this proceeding is to develop technical rules that will permit optimal
use of the H Block without causing harmful interference to commercial
mobile service licensees in the 1930-1995 MHz PCS band. In responding
to our inquiries, we ask commenting parties to provide test data and
specific technical analysis to support their positions.
1. Upper H Block: 1995-2000 MHz
27. Immediately below the Upper H Block is the 1930-1995 MHz PCS
band, which is used for base station transmit/mobile receive (i.e.,
downlink). The Commission has tentatively concluded that base stations
operating in the Upper H Block would be compatible with similar use of
the spectrum below 1995 MHz, and there would be no need to apply
technical standards more restrictive than those established for other
AWS stations. The record developed in WT Docket No. 04-356 does not
demonstrate any disagreement with this approach.
28. Immediately above the Upper H Block is the 2000-2020 MHz band,
which is allocated on a co-primary basis for Fixed, Mobile, and Mobile
Satellite (Earth-to-space, i.e., for uplink mobile transmit/satellite
receive). In the AWS-4 Report and Order, we adopted service rules under
which 2000-2020 MHz will be licensed terrestrially for mobile transmit/
base station receive. Service Rules for Advanced Wireless Services in
the 2000-2020 MHz and 2180-2200 MHz Bands, FCC 12-151. The Commission
has previously concluded that there is potential for mutual
interference between these two bands, and in WT Docket No. 04-356 MSS
commenters raised concerns. In the AWS-4 Report and Order, we concluded
that the public interest is best served by requiring AWS-4 uplinks to
operate at lower power levels in 2000-2005 MHz and emit lower emissions
below 2000 MHz. We further concluded that 2 GHz MSS operators and AWS-4
licensees must accept any harmful interference from future, lawful
operations in the Upper H Block due to out of band emissions in the
2000-2005 MHz band or receiver overload from transmitters operating
within the 1995-2000 MHz band.
a. Upper H Block Power Limits
29. We also propose to adopt the standard base station power limits
that apply to AWS and PCS stations: 1640 watts peak equivalent
isotropically radiated power (EIRP) in non-rural areas and 3280 watts
peak EIRP in rural areas. We seek comment on this proposal.
b. Upper H Block Out of Band Emissions Limits
30. Given the considerations addressed above, we propose an out-of
band-emission (OOBE) limit for base stations of 43 + 10
log10 (P) dB, where P is the transmit power in watts,
outside of the 1995-2000 MHz band. To provide some interference
mitigation to AWS-4 uplink operations above 2000 MHz while ensuring
that all of the Upper H Block spectrum can be used for more valuable
downlink operations, we propose a further OOBE limit of 70 + 10
log10 (P) dB above 2005 MHz. We seek comment on our
proposals and any alternative proposals, including comments on the
associated costs and benefits of each proposal.
c. Co-Channel Interference Between Licensees Operating in Adjacent
Regions
31. If we ultimately decide to license this band on the basis of
geographic service areas that are less than nationwide (e.g., EAs), we
will have to ensure that such licensees do not cause interference to
co-channel systems operating along their common geographic borders. In
other services, the Commission has offered either a ``boundary limit''
or a ``coordination'' approach to provide interference protection
between co-channel licensees operating in these bands. Both approaches
have certain advantages and disadvantages. For example, coordination
would likely minimize the potential for interference to coordinated
stations, but could also impose unnecessary costs in coordinating
facilities that have a low potential for interference. A boundary limit
approach would establish an accepted standard, which would enable
licensees to deploy facilities in boundary areas without the need for
coordination; but could require some additional planning between
licensees to ensure that potential interference does not occur.
32. In other bands where spectrum has been allocated for fixed and
mobile services, we have uniformly adopted the boundary limit method to
minimize co-channel interference. For example, for the PCS and AWS-1
bands, which are closest in frequency to the H Block, there is a field
strength limit of 47 dB[mu]V/m at the boundary of licensed geographic
areas. We propose that the boundary limit approach should be adopted
for the H Block as the means for protecting licensees from co-channel
interference at their borders, and propose to specify a boundary field
strength limit of 47 dB[mu]V/m. We seek comment on these proposals. We
also ask whether, if the boundary limit method is adopted, we should
permit licensees operating in adjoining areas to employ alternative,
agreed-upon signal limits at their common borders.
2. Lower H Block: 1915-1920 MHz
33. Immediately below the Lower H Block is the 1850-1915 MHz PCS
band, which is used for mobile transmit/base receive. Use of the Lower
H Block for mobile transmit/base receive, as we have proposed, would be
compatible with this adjacent PCS band. Thus there would be no need to
apply technical standards more restrictive than those established for
AWS and PCS stations to protect PCS operations below 1915 MHz.
34. Above the Lower H Block is the 1920-1930 MHz unlicensed PCS
(UPCS) band, which does not require protection, and the 1930-1995 PCS
base transmit/mobile receive band. The latter presents protection
challenges for use of the Lower H Block. The Commission has previously
concluded that there is potential for mobile transmitters in the 1915-
1920 MHz band to cause out-of-band and overload interference to mobile
receivers in the 1930-1995 MHz band, but only when certain worst-case
conditions are all present. Specifically, ``[t]he worst case occurs
when the mobile transmitter is operating at maximum power (near the
edge of its service area) at the upper edge of the band (near 1920 MHz)
and the mobile receiver is trying to receive a weak signal (near the
edge of its service area) at the lower edge of the band (near 1930 MHz)
and only free space loss is considered.'' Additionally, both mobiles
must be in close proximity to each other, less than a few meters, and
in line-of-sight conditions. The Commission found that the confluence
of these worst-case circumstances is very infrequent and the risk of
actual interference is further mitigated by
[[Page 1172]]
normal network management practices such as handoff and power
management. Nevertheless, the Commission concluded that technical
standards more restrictive for Lower H Block than those established for
PCS may be appropriate to avoid impairing incumbent PCS operations
above 1930 MHz.
35. The Spectrum Act sharply focuses these concerns by requiring us
to auction the H Block spectrum unless we determine that the
frequencies cannot be used without causing harmful interference to
commercial mobile service licensees in the frequencies between 1930 MHz
and 1995 MHz (PCS downlink). We therefore wish to review previous
proposals for Lower H Block power and emissions limits, evaluate how
the interference environment may have changed since those earlier
discussions, and determine what limits are appropriate for the current
environment, and whether they may be increased in the future.
a. Lower H Block Power Limits
36. Several parties have expressed concern about the potential for
intermodulation interference, which can result from receiver overload,
impacting PCS user equipment (UEs) receiving in the PCS B Block (1950-
1965 MHz). In the 2008 FNPRM, the Commission proposed a limit on the
EIRP from H Block mobile transmitters of +23 dBm/MHz. In response,
Sprint and Verizon Wireless (both licensees of significant portions of
PCS including B Block) and Nextel reiterated their 2005 proposal for
gradated power limits to avoid interference to PCS as follows: A limit
on mobile EIRP of +6 dBm/MHz in the 1917-1920 MHz band, and a limit of
+30 dBm/MHz in the 1915-1917 MHz band. This proposal was supported by
testing of a variety of mobiles commissioned by CTIA in 2004. Sprint
has repeatedly and recently stated that the H Block can be auctioned
and licensed without interfering with PCS operations by using these
earlier-proposed, gradated power limits. AT&T, also a licensee of a
significant portion of PCS spectrum, including the B Block, did not
concur with the plan put forth by Sprint, Verizon and Nextel and
submitted an alternative solution. AT&T proposed a uniform,
``technologically neutral,'' -13 dBm/MHz power limit on the Lower H
Block to protect PCS, arguing that the split-band approach favored CDMA
over GSM and wideband technologies, such as W-CDMA and UMTS/HSPA. In
response to the AWS-4 NPRM AT&T favored leaving the H Block idle to
serve as a guard band to protect AWS-4 and PCS. More recently, AT&T
argues in the alternative that if the Commission proceeds with an
auction of the entire H Block despite AT&T's concerns, we should adopt
technical rules to protect PCS devices from harmful interference
including appropriate power limits on H Block mobiles.
37. We seek to establish technical requirements that will support
flexible use of this spectrum in accordance with the Spectrum Act
without causing harmful interference to PCS licensees. The record in WT
Docket No. 04-356 was largely developed between four and eight years
ago. Since then, the mobile broadband industry, including the wireless
network equipment sector, has undergone a rapid evolution. The
marketplace has seen greater adoption of wideband technologies such as
UMTS and LTE, as well as the authorization and launch of PCS services
in the G Block. Advances in mobile device development have unleashed
new designs and ushered in the advent of the smartphone. We seek
comment on how changes in the industry may have affected the
assumptions underlying previous analyses. How have filtering techniques
and duplex design improved? Given that the Commission's intentions to
authorize mobile service in the H Block have been known in the industry
since at least 2004, have better duplexer filters been employed in user
equipment? How has the population of mobile devices changed, what is
the mix of technologies in use in the marketplace, and what is the
performance of this new generation of devices?
38. We seek comment on the appropriate power limit for 1915-1920
MHz mobile devices in order to prevent interference to PCS operations.
Commenters are asked to submit detailed technical analyses or studies
in support of their recommendations and are encouraged to provide test
data wherever possible. The assumptions that underpin the analyses
should identify how harmful interference is defined. What probability
of interference is deemed acceptable (what percentage of mobiles, what
percentage of locations)? For example, the Commission's earlier
proposal, 23 dBm/MHz, was based on a mobile separation of two meters
between users, while others argued for a one-meter separation.
Likewise, is defining harmful interference based on degradation to a
receiver's noise floor appropriate for a system which is inherently
interference-limited? If stricter limitations on mobile transmit power
are deemed necessary to protect current legacy devices, should the
power limits sunset after a period of time, allowing time for new, more
resilient mobiles to comprise the bulk of the mobile population? How
much time will licensees need to obtain and deploy UEs with the better
filters, if better filters are still needed? How long will consumers'
legacy UEs need to be protected? We also seek comment on the costs and
benefits of alternative power limits.
39. The 1915-1920 MHz band is also allocated for fixed services, so
fixed stations will be allowed to operate in the band. However, because
fixed station antennas are generally located some distance above ground
level, the possibility of interference from fixed stations to PCS
mobiles will likely be less than the anticipated interference from
1915-1920 MHz mobiles to PCS mobiles. We therefore believe that 1915-
1920 MHz fixed stations should be permitted to employ a higher power
level than mobiles operating in that band. We seek comment as to what
that power level should be.
b. Lower H Block Out of Band Emissions Limits
40. The Commission has previously concluded that, in certain
circumstances, attenuating transmitter OOBEs by 43 + 10
log10 (P) dB is appropriate to minimize harmful
electromagnetic interference between operators. This limit is generally
applied in cases where adjacent services have similar characteristics,
such as base-to-base or mobile-to-mobile and adhere to similar power
limits. This limit has served well as a basis for development of
industry standards which may impose tighter limits in some cases. An
OOBE limit of 43 + 10 log10 (P) dB applies to most of the
services authorized under parts 24 and 27. In particular, this is the
limit imposed on transmitters operating in both the 1930-1995 MHz PCS
band and the 1920-1930 MHz UPCS band adjacent to the Lower H Block. As
both of these services in adjacent bands provide for mobiles with
similar power, the same OOBE limit appears appropriate for the Lower H
Block. The Commission therefore proposes to require attenuation of 43 +
10 log10 (P) to emissions from transmitters in the 1915-1920
MHz band.
41. The risk of mobile-to-mobile interference discussed below may
require a further OOBE limitation to protect against the potential for
interference from the out-of band emissions of Lower H Block
transmitters into PCS mobiles receiving in the 1930-1995 MHz band.
Currently, the Commission's rules require licensees
[[Page 1173]]
operating in the 1850-1915 MHz PCS band to comply with the 43 + 10
log10 P dB OOBE limit at the edge of their authorized
spectrum block. This level of required attenuation of emissions with
respect to the transmitter power can be translated into a power
spectral density of -13 dBm/MHz for out-of-band emissions. We are aware
that PCS-industry standards require equipment manufacturers to
incorporate a stronger OOBE suppression capability in PCS mobiles. In
the 2008 FNPRM, the Commission proposed a stricter limit on out of band
emissions from Lower H Block transmitters of -60 dBm/MHz in the
frequency range of 1930-1990 MHz (PCS downlink band), equivalent to an
attenuation of 90 + 10 log10 (P) dB. The joint proposal of
Sprint, Verizon and Nextel requested a limit of -76 dBm/MHz. Their
analysis assumed a one-meter separation and mobile receivers operating
in noise-limited faded signal conditions, and included test data
commissioned by CTIA. Most of the mobiles tested met this limit. The -
76 dBm/MHz specification is also the industry standard for CDMA devices
under TIA-98F. Ericsson and Motorola submitted comments supporting the
use of industry standards as the basis for OOBE limits and cited -61
dBm/MHz for the GSM Standard, with Motorola citing -76 dBm/MHz for the
CDMA standard. Ericsson provided a later submission specifically
supporting a limit of -66 dBm/MHz. Motorola, responding to CTIA's
measurements, noted the failure of two GSM devices to meet the tighter
CDMA-based OOBE limits of -76 dBm/MHz and thus advocated a limit of -71
dBm/100 kHz, which is equivalent to -61 dBm/MHz.
42. As discussed earlier, there has been considerable technological
advancement in devices and technologies deployed in the mobile
broadband industry since this issue was last under review. We note that
many of the arguments for proposed OOBE limits were linked to industry
standards at the time. The 3GPP standard for emerging 4G technology
allows for a higher level of OOBE, generally -50 dBm/MHz in most bands,
but has implemented a limit of -40 dBm/MHz in several bands. The
current LTE standards for the use in PCS requires mobiles in 1850-1915
MHz to meet a limit of -50 dBm/MHz in 1930-1995 MHz. In this and the
concurrent AWS-4 proceeding, Sprint has expressed support for an OOBE
limit of -40 dBm/MHz from AWS-4 transmitters into the PCS downlink band
at 1930-1995 MHz. In the AWS-4 Report and Order we apply the limit of
70 + 10 log10(P) dB, which is equivalent to -40 dBm/MHz, to
all emissions below 2000 MHz. We believe that the current capabilities
for mobile device manufacturers will support this level of tolerance
for interference. Given that other operations may already be imposing
out-of-band emissions at the -40 dBm/MHz level, should the Commission
adopt this limit specifically for Lower H Block emissions in the 1930-
1995 MHz range?
43. The consensus from the record developed in WT Docket No. 04-356
supports the creation of a specific OOBE limit for emissions from Lower
H Block transmitters into the 1930-1995 MHz band, even though no other
PCS mobiles are subject to such tighter limits in this band. We seek
comment on the appropriate OOBE limit for the Lower H Block necessary
to prevent interference to PCS operations. Commenters are asked to
submit detailed technical analyses or studies in support of their
recommendations and are encouraged to provide test data wherever
possible. As with comments regarding power limits, the assumptions that
underpin the analyses should identify how harmful interference is
defined. What probability of interference is deemed acceptable (what
percentage of mobiles, what percentage of locations)? For example, the
Commission's earlier proposal was based on a mobile separation of two
meters between users, while others argued for a one-meter separation.
Commenters should also discuss if certain limits favor or prohibit
certain technologies, and are therefore not technologically neutral.
For example, would imposing a limit of -76 dBm/MHz favor CDMA2000 over
LTE, because CDMA2000 specifies -76 dBm/MHz for this band, while LTE
specifies only -50 dBm/MHz? If stricter limitations on OOBE are deemed
necessary to protect current legacy devices, should these limits sunset
after a period of time, allowing time for new, more resilient mobiles
to comprise the bulk of the mobile population? How much time will
licensees need to obtain and deploy UEs with the better filters? How
long will consumers' legacy UEs need to be protected? We also seek
comment on the costs and benefits of alternative OOBE limits.
44. To fully define an emissions limit, the Commission's rules
generally specify details on how to measure the power of the emissions,
such as the measurement bandwidth. For the Broadband PCS band, the
measurement bandwidth used to determine compliance with this limit for
mobile stations is one MHz or greater, with some modification in the
one-MHz bands immediately outside and adjacent to the frequency block
where a resolution bandwidth of at least one percent of the emission
bandwidth of the fundamental emission of the transmitter may be
employed. We believe that it is reasonable to apply this same procedure
to transmissions in the 1915-1920 MHz band.
3. Canadian and Mexican Coordination
45. Section 27.57(c) of our rules provides that AWS-1 operations
are subject to international agreements with Mexico and Canada. We
propose to use this approach for the H Block. Until such time as any
adjusted agreements between the United States, Mexico and/or Canada can
be agreed to, operations must not cause harmful interference across the
border, consistent with the terms of the agreements currently in force.
We note that our proposed rules, and any rules that may ultimately
become effective pursuant to the above-captioned proceeding, may need
to be modified to comply with any future agreements with Canada and
Mexico regarding the use of the H Block. We seek comment on this issue,
including the costs and benefits, and on any alternative approaches to
this issue.
4. Other Technical Issues
46. Part 27 contains several additional technical rules applicable
to all part 27 services, including Sec. 27.51 (Equipment
authorization), Sec. 27.52 (RF safety), Sec. 27.54 (Frequency
stability), Sec. 27.56 (Antennas structures; air navigation safety),
and Sec. 27.63 (Disturbance of AM broadcast station antenna patterns).
As we are proposing to license the H Block as Advanced Wireless
Services under part 27, we propose that all of these part 27 technical
rules should apply to all H Block licenses and licensees, including
licensees who acquire their licenses through partitioning or
disaggregation. We seek comment on this approach including comments on
the associated costs and benefits.
47. We recognize that H Block, governed under part 27 rules, is
adjacent to Broadband PCS spectrum administered under part 24. The
adjacent blocks are harmonized with the same uplink/downlink
configuration. It is possible that the licensee of a PCS G Block
geographic area may also acquire the authorization for the adjoining H
Block through the competitive bidding process. In that event, the
licensee may wish to deploy a wider channel bandwidth operating across
both bands, and we believe that such flexibility is appropriate. For
one thing, wider channel bandwidths may provide higher data rates and
potentially more efficient use of the spectrum. The potential for
[[Page 1174]]
this situation raises questions about the possible effects of the
combined blocks operating under different rule parts. Under the
technical rules proposed herein, the limits on OOBE and power are
similar, but not precisely the same. We anticipate that the licensee's
combined operations should satisfy the more restrictive limit if a
conflict arises. For example, an OOBE limit of 43 + 10 log10
(P) dB applies to both the Upper G Block and the Upper H block.
However, the Upper H Block has an additional requirement to meet an
OOBE limit of 70 + 10 log10 (P) dB above 2005 MHz. The
combined operations of both blocks would still need to meet this
tighter restriction above 2005 MHz. We further propose that to the
extent a service provider establishes unified operations across the
adjacent blocks, the operator may choose not to observe emission limits
strictly between its adjacent block licenses in a geographic area, so
long as it complies with other Commission rules and is not adversely
affecting the operations of other parties by virtue of exceeding the
emission limit. We seek comment on this observation. We also seek
comment to identify potential conflicts between the two rule parts
under this scenario and proposals on how they could be reconciled.
Commenters should discuss and quantify any costs and benefits
associated with such combined operations and any effects on
competition, innovation and investment.
D. Cost Sharing
1. 1915-1920 MHz Band
48. The 1915-1920 MHz band is a subset of a larger band at 1910-
1930 MHz that is allocated for Fixed and Mobile services on a primary
basis. In 1993, the Commission designated the 1910-1930 MHz band for
use by Unlicensed Personal Communications Service (UPCS) devices. Prior
to 1993, the 1910-1930 MHz band was allocated for Fixed services and
used for fixed point to point microwave links. To facilitate the
introduction of UPCS systems, the Commission designated the Unlicensed
PCS Ad Hoc Committee for 2 GHz Microwave Transition and Management (now
known as ``UTAM, Inc.'') as the sole entity to coordinate and manage
the transition. In accordance with the Commission's policies
established in the Emerging Technologies proceeding, UTAM subsequently
relocated virtually all of the incumbent microwave links, thereby
clearing the 1910-1930 MHz band for use by UPCS systems.
49. In 2003, the Commission sought comment on re-designating all or
a portion of the 1910-1920 MHz segment for AWS use. In 2004, the
Commission re-designated the 1910-1915 MHz band from the UPCS to Fixed
and Mobile services and assigned that spectrum to Sprint Nextel, Inc.
(``Sprint'') as replacement spectrum for Sprint's operations being
relocated from the 800 MHz band. Shortly thereafter, the Commission re-
designated the 1915-1920 MHz band from UPCS for use by licensed AWS
operations. In so doing, the Commission acknowledged that ``UTAM must
be fully and fairly reimbursed for relocating incumbent microwave users
in this band'' and agreed ``that UTAM should be made whole for the
investments it has made in clearing the UPCS bands.'' Relative to the
Lower H Block, the Commission specifically concluded that ``UTAM is
entitled to reimbursement of twenty-five percent--on a pro-rata basis--
of the total costs it has incurred, including its future payment
obligations for links it has relocated, as of the date that a new
entrant gains access to the 1915-1920 MHz spectrum band.'' The
Commission also determined that AWS licensees would be required to pay
their portion of the 25 percent of costs prior to commencement of their
operations.
50. In the AWS-2 NPRM, the Commission requested comments on methods
for apportioning the relocation costs among H Block licensees,
including what method of allocating relocation costs would be most
advantageous to reimbursing UTAM and for providing certainty for
bidders. The AWS-2 NPRM also sought comment on what rules should govern
the allocation of relocation costs among multiple AWS licensees in the
1915-1920 MHz band. Because UTAM requested that reimbursement payments
from AWS licensees be due as a precondition to the granting of a
license, the Commission sought comment on whether it would be
advantageous to require AWS licensees to reimburse UTAM for its band
clearing costs ``earlier than the commencement of actual service.'' To
the extent that the Commission opted not to do so, the Commission also
sought comment on whether it should specify when AWS entrants will be
considered to have commenced operations.
51. In deciding how to apportion UTAM's reimbursement among H Block
licensees in the 1915-1920 MHz band, we believe it is important to
provide auction bidders with reasonable certainty as to the range of
the reimbursement obligation associated with each license under various
auction outcomes. We also believe it is important for UTAM to be fully
reimbursed as soon as possible given that UTAM cleared the band over
ten years ago. Accordingly, we propose to require H Block licensees to
pay a pro rata amount of the 25 percent owed to UTAM based on the gross
winning bids of the initial H Block auction. Specifically, we propose
that the reimbursement amount owed (``RN'') be determined by dividing
the gross winning bid (``GWB'') for an H Block license (i.e., an
individual EA) by the sum of the gross winning bids for all H Block
licenses won in the initial auction and then multiplying by
$12,629,857. In other words, the cost-sharing formula would read as
follows:
[GRAPHIC] [TIFF OMITTED] TP08JA13.011
52. This formula would ensure that UTAM receives full reimbursement
after the first auction by effectively apportioning the reimbursement
costs associated with any unsold H Block licenses among the winning
bidders of H Block licenses in the first auction--with an exception in
the event a successful bidder's long-form application is not filed or
granted, and a contingency to cover an unlikely scenario. We further
propose that winning bidders of H Block licenses in the first auction
of this spectrum would not have a right to seek reimbursement from
other H Block licensees including for licenses awarded in subsequent
auctions. We believe this approach would avoid recordkeeping burdens
and potential disputes and that it is appropriate given that--in the
event that most licenses are awarded--the reimbursement obligation for
an individual license will represent but a fraction of overall
reimbursement to UTAM. We seek comment on our proposals including the
following
[[Page 1175]]
contingency: in the unlikely event that licenses covering less than 40
percent of the population of the United States are awarded in the first
auction, we propose that winning bidders--in the first auction of this
spectrum as well as in subsequent auctions--will be required to timely
pay UTAM their pro rata share calculated by dividing the population of
the individual EA awarded at auction by the total U.S. population and
then multiplying by $12,629,857. This contingent proposal would ensure
that UTAM is reimbursed as soon as possible while also protecting
winning bidders of H Block licenses from bearing an undue burden of the
reimbursement obligation due to UTAM. We seek comment on our proposal.
53. Alternatively, we specifically seek comment on the relative
costs and benefits of adopting a population based cost-sharing formula
as the general rule for the H Block. We acknowledge that using a
population based approach in all events would offer bidders certainty
as to the obligation attached to each license but this approach could
also defer UTAM's full reimbursement indefinitely if less than all of
the licenses are awarded during the initial auction.
54. We further propose that winning bidders promptly pay UTAM the
amount owed, as calculated pursuant to the formula that we adopt,
within 30 days of grant of their long form applications for the
licenses. For PCS and AWS-1, and AWS-4, cost sharing obligations are
triggered when a licensee proposes to operate a base station in an area
cleared of incumbents by another licensee. In this case, however,
UTAM's members received no benefit for clearing the Lower H Block
nationwide over ten years ago, and the Commission determined in 2003
that the new PCS/AWS licensees entering the band would reap the
benefits of UTAM's efforts and that UTAM should be fully reimbursed.
Moreover, as noted above, given the relative fraction of overall
reimbursement to UTAM that will be owed by each winning bidder, we
believe that it will not disincentivize parties from filing
applications or impose a burden on winning bidders to reimburse UTAM
within 30 days of the grant of their long-form applications. We seek
comment on the above proposals, including the costs and benefits.
2. 1995-2000 MHz Band
55. The 1995-2000 MHz band is part of the 1990-2025 MHz band that
the Commission reallocated from the Broadcast Auxiliary Service (BAS)
to emerging technologies such as PCS, AWS, and MSS. Consistent with the
relocation principles established by the Commission, each new entrant
had an independent responsibility to relocate incumbent BAS licensees.
In addition, as a general rule, the Commission's traditional cost-
sharing principles are applicable to the 1990-2025 MHz band. Sprint,
which is the PCS licensee at 1990-1995 MHz, completed the BAS
transition for the entire 35 megahertz in 2010. In 2011, Sprint
notified the Commission that it entered in a private settlement with
DISH to resolve the dispute with MSS licensees with respect to MSS
licensees' obligation to reimburse Sprint for their share of the BAS
relocation costs. Accordingly, the only remaining cost-sharing
obligations in the 1990-2025 MHz band are attributable to the
remaining, unassigned ten megahertz of spectrum in the 1990-2025 MHz
band: 1995-2000 MHz and 2020-2025 MHz.
56. In the AWS Sixth Report and Order, the Commission determined
that all new entrants to the 1990-2025 MHz band may be required to bear
a proportional share of the costs incurred in the BAS clearance, on a
pro rata basis according to the amount of spectrum each licensee is
assigned. However, the Commission did not decide specifically how to
allocate that share. In the AWS-2 NPRM, the Commission sought comment
on how the reimbursement rights and obligations of each AWS licensee
could be most efficiently and equitably allocated if the H Block were
licensed on a geographic area basis other than as a nationwide license.
To the extent that not all spectrum in the 1990-2025 MHz band would
have been licensed, the Commission sought comment on whether to require
those entrants who are licensed at that time to bear a pro rata share
of the relocation costs based on the amount of spectrum they have been
assigned relative to the amount of 1990-2025 MHz spectrum that has been
licensed. In addition, the Commission also sought comment on whether to
impose reimbursement obligations on later arriving new entrants, on the
appropriate length of such an obligation, and on the mechanism for
applying those obligations.
57. Consistent with the Commission's intent that all entrants to
the 1990-2025 MHz band bear a proportional share of the costs incurred
in the BAS clearance on a pro rata basis according to the amount of
spectrum each entrant is assigned, H Block licensees will be
responsible for reimbursing Sprint for one-seventh of the BAS
relocation costs (i.e., the proportional share of the costs associated
with Sprint relocating 5 megahertz of BAS spectrum that will be used by
H Block entrants). We believe it is important to provide auction
bidders with reasonable certainty as to the range of the reimbursement
obligation associated with each license under various auction outcomes.
We also believe it is important for Sprint to be fully reimbursed as
soon as possible given that Sprint cleared the H Block so H Block
licensees will receive unencumbered spectrum. Accordingly, we propose
to require H Block licensees to reimburse Sprint based on the gross
winning bids of the initial H Block auction. Specifically, we propose
that the reimbursement amount owed (``RN'') be determined by dividing
the gross winning bid (``GWB'') for an H Block license (i.e., an
individual EA) by the sum of the gross winning bids for all H Block
licenses won in the initial auction and then multiplying by
$94,875,516. In other words, the cost-sharing formula would read as
follows:
[GRAPHIC] [TIFF OMITTED] TP08JA13.012
Because certain EAs, such as for the Gulf of Mexico, have a relative
value that is not directly tied to population, our proposal seeks to
allow the market to determine the value of each EA license and the
associated amount of the reimbursement obligation. However, parties can
comment on alternative cost-sharing formulas, including one based on
population as described below. We seek comment on our proposals.
58. This formula would ensure that Sprint receives full
reimbursement after the first auction by effectively apportioning the
reimbursement costs associated with any unsold H Block licenses among
the winning bidders of
[[Page 1176]]
H Block licenses in the first auction--with an exception in the event a
successful bidder's long-form application is not filed or granted, and
a contingency to cover an unlikely scenario. We further propose that
winning bidders of H Block licenses in the first auction of this
spectrum would not have a right to seek reimbursement from other H
Block licensees including for licenses awarded in subsequent auctions.
We believe this approach would avoid recordkeeping burdens and
potential disputes and that it is appropriate given that--in the event
that most licenses are awarded--the reimbursement obligation for an
individual license will represent but a fraction of overall
reimbursement to Sprint. We seek comment on our proposals including the
following contingency: In the unlikely event that licenses covering
less than 40 percent of the population of the United States are awarded
in the first auction, we propose that winning bidders--in the first
auction of this spectrum as well as in subsequent auctions--will be
required to timely pay Sprint their pro rata share calculated by
dividing the population of the individual EA awarded at auction by the
total U.S. population and then multiplying by $94,875,516. This
contingent proposal would ensure that Sprint is reimbursed as soon as
possible while also protecting winning bidders of H Block licenses from
bearing an undue burden of the reimbursement obligation due to Sprint.
We seek comment on our proposal.
59. Alternatively, we specifically seek comment on the relative
costs and benefits of adopting a population based cost-sharing formula
as the general rule for the H Block. We acknowledge that using a
population based approach in all events would offer bidders certainty
as to the obligation attached to each license but this approach could
also defer Sprint's full reimbursement indefinitely if less than all of
the licenses are awarded during the initial auction.
60. We further propose that winning bidders promptly pay Sprint the
amount owed, as calculated pursuant to the formula that we adopt,
within 30 days of grant of their long form applications for the
licenses. For PCS and AWS-1, and AWS-4, cost sharing obligations are
triggered when a licensee proposes to operate a base station in an area
cleared of incumbents by another licensee. In this case, rather than
Sprint itself benefiting from its band clearing efforts, other entrants
in the band will reap the benefits of Sprint's efforts. Accordingly, we
find no significant reason to treat Sprint any differently than UTAM
and propose that Sprint be fully reimbursed by AWS licensees that will
benefit from Sprint's clearing of the H Block. Moreover, as noted
above, given the relative fraction of overall reimbursement to Sprint
that will be owed by each winning bidder, we believe that it will not
disincentivize parties from filing applications or impose a burden on
winning bidders to reimburse Sprint within 30 days of the grant of
their long-form applications. We seek comment on the above proposals,
including the costs and benefits.
61. Consistent with precedent, we propose a specific date on which
the reimbursement obligation adopted above will terminate. In recent
instances, the relocation and cost-sharing obligations sunset ten years
after the first ET license is issued in the respective band. To the
extent that Sprint had not completed the relocation of BAS from the
1990-2025 MHz band, BAS operations in the band would have become
secondary after December 9, 2013. However, in this instance, we do not
believe that the public interest would be served by adopting December
9, 2013 as the sunset date for terminating the requirement that H Block
licensees collectively reimburse Sprint for one-seventh of the BAS
relocation costs. Rather, we propose a sunset date for the cost-sharing
obligations of H Block licensees to Sprint that is ten years after the
first H Block license is issued in the band. We find that a number of
factors support our proposal. As discussed above, Sprint relocated BAS
incumbents from the 1995-2000 MHz band, even though H Block licensees
and not Sprint itself will reap the benefits of Sprint's relocation of
BAS. In addition, the integrated nature of BAS operations required
relocations on a market-by-market basis, and such a requirement would
have imposed significant costs on individual H Block entrants because
isolated, link-by-link relocation was infeasible. It therefore served
the public interest for Sprint to undertake the relocation on an
integrated, nationwide basis. Because H Block licenses have yet to be
auctioned and because interested applicants will be able to calculate
their reimbursement obligation to Sprint in bidding on licenses, we do
not believe that our proposal imposes a burden on the winning bidders
of H Block licenses. We seek comment on our proposed sunset date,
including the costs and benefits.
E. Regulatory Issues; Licensing and Operating Rules
62. We are proposing licensing and operating rules that will
provide H Block licensees with the flexibility to provide any fixed or
mobile service that is consistent with the allocations for this
spectrum. Specifically, we are seeking comment on the appropriate
license term, criteria for renewal, and other licensing and operating
rules pertaining to the H Block. In addition, we seek comment on the
potential impact of all of our proposals on competition. In addressing
these issues, commenters should discuss the costs and benefits
associated with these proposals and any alternative that commenters
propose.
1. Regulatory Status
63. We propose to apply the regulatory status provisions of Sec.
27.10 of the Commission's rules to licensees in the H Block. The
Commission's current mobile service license application requires an
applicant for mobile services to identify the regulatory status of the
service(s) it intends to provide because service offerings may bear on
eligibility and other statutory and regulatory requirements. Under part
27, the Commission permits applicants who may wish to provide both
common carrier and non-common carrier services (or to switch between
them) under a single license to request status as both a common carrier
and a non-common carrier. Thus, a part 27 applicant is not required to
choose between providing common carrier and non-common carrier
services. We propose to adopt this same approach here. Licensees in the
H Block would be able to provide all allowable services anywhere within
their licensed area at any time, consistent with their regulatory
status. We believe that this approach is likely to achieve efficiencies
in the licensing and administrative process, and provide flexibility to
the marketplace. We seek comment on the appropriate licensing approach
and ask that commenters discuss the costs and benefits of their
proposed licensing approach.
64. We further propose that applicants and licensees in the H Block
be required to indicate a regulatory status for any services they
choose to provide. Apart from this designation of regulatory status, we
do not propose to require applicants to describe the services they seek
to provide. We caution potential applicants that an election to provide
service on a common carrier basis typically requires that the elements
of common carriage be present; otherwise the applicant must choose non-
common carrier status. If potential applicants are
[[Page 1177]]
unsure of the nature of their services and their classification as
common carrier services, they may submit a petition with their
applications, or at any time, requesting clarification and including
service descriptions for that purpose. We propose to apply this
framework to H Block licensees and seek comment on this proposal,
including the costs and benefits of this proposal.
65. We also propose that if a licensee were to change the service
or services it offers such that it would be inconsistent with its
regulatory status, the licensee must notify the Commission. A change in
a licensee's regulatory status would not require prior Commission
authorization, provided the licensee was in compliance with the foreign
ownership requirements of section 310(b) of the Communications Act that
would apply as a result of the change, consistent with the Commission's
rules for AWS-1 spectrum. Consistent with our part 27 rules, we propose
to require licensees to file the notification within 30 days of a
change made without the need for prior Commission approval, except that
a different time period may apply where the change results in the
discontinuance, reduction, or impairment of the existing service. We
seek comment on this proposal, including the costs and benefits.
2. Ownership Restrictions
a. Foreign Ownership Reporting
66. We propose to apply the provisions of Sec. 27.12 of the
Commission's rules to applicants for licenses in the H Block. Section
27.12 implements section 310 of the Communications Act, including
foreign ownership and citizenship requirements that restrict the
issuance of licenses to certain applicants. An applicant requesting
authorization to provide services in this band other than broadcast,
common carrier, aeronautical en route, and aeronautical fixed services
would be subject to the restrictions in section 310(a), but not to the
additional restrictions in section 310(b). An applicant requesting
authorization for broadcast, common carrier, aeronautical en route, or
aeronautical fixed services would be subject to both sections 310(a)
and 310(b). We do not believe that applicants for this band should be
subject to different obligations in reporting their foreign ownership
based on the type of service authorization requested in the
application. Consequently, we propose to require all applicants to
provide the same foreign ownership information, which covers both
sections 310(a) and 310(b), regardless of which service they propose to
provide in the band. We note, however, that we would be unlikely to
deny a license to an applicant requesting to provide exclusively
services that are not subject to section 310(b), solely because its
foreign ownership would disqualify it from receiving a license if the
applicant had applied for authority to provide such services. However,
if any such licensee later desires to provide any services that are
subject to the restrictions in section 310(b) we would require the
licensee to apply to the Commission for an amended license, and we
would consider issues related to foreign ownership at that time. We
request comment on this proposal, including any costs and benefits.
b. Eligibility and Mobile Spectrum Holding Policies
67. We propose to adopt an open eligibility standard for the H
Block. We believe that adopting such a standard should encourage
efforts to develop new technologies, products and services, while
helping to ensure efficient use of this spectrum. An open eligibility
standard is consistent with the Commission's past practice for mobile
wireless spectrum allocations, as well as with section 6404 of the
Spectrum Act. We seek comment on our open eligibility approach.
68. We note that an open eligibility approach would not affect
citizenship, character, or other generally applicable qualifications
that may apply under our rules. Additionally, section 6004 of the
Spectrum Act restricts participation in auctions required under the
Spectrum Act, which includes the H Block, by ``person[s] who [have]
been, for reasons of national security, barred by any agency of the
Federal Government from bidding on a contract, participating in an
auction, or receiving a grant.'' We seek comment on our proposal to
address this issue in the competitive bidding procedures section below.
Further, as the Commission observed in the Incentive Auction NPRM,
Expanding the Economic and Innovation Opportunities of Spectrum Through
Incentive Auctions, 77 FR 69934 (Nov. 21, 2012) (Incentive Auction
NPRM), section 6004 does not address eligibility to acquire licenses on
the secondary market from the initial or subsequent licensee. We seek
comment on whether section 6004 permits or requires the Commission to
restrict eligibility of the persons described therein to acquire
licenses in the secondary market, and whether and to what extent such
restriction is consistent with other provisions of the Communications
Act. If such restrictions should be implemented, should we do so by
requiring certifications in applications similar to those required
under our rules for enforcement of the Anti-Drug Abuse Act of 1988?
Would it be permissible and appropriate to address such situations on a
case-by-case basis in light of the specific facts and circumstances?
Should we apply the same attribution rules in doing so, where the
relevant person is not the sole owner of the proposed licensee?
69. We seek comment generally on whether and how to address any
mobile spectrum holdings issues involving H Block spectrum in order to
meet our statutory requirements and our goals for the H Block. Section
309(j)(3)(B) of the Communications Act provides that in designing
systems of competitive bidding, the Commission shall ``promot[e]
economic opportunity and competition and ensur[e] that new and
innovative technologies are readily accessible to the American people
by avoiding excessive concentration of licenses.'' More recently,
section 6404 of the Spectrum Act recognizes the Commission's authority
``to adopt and enforce rules of general applicability, including rules
concerning spectrum aggregation that promote competition.'' We note
that we recently initiated a proceeding to revisit the mobile spectrum
holdings policies that apply to both transactions and auctions. In the
past, the Commission has sought comment on these issues with respect to
particular spectrum bands prior to auctioning spectrum licenses.
70. We seek comment on whether the acquisition of H Block spectrum
should be subject to the same general mobile spectrum holding policies
applicable to frequency bands that the Commission has determined to be
available and suitable for wireless services. Alternatively, depending
on the specific rules and requirements that apply to H Block spectrum,
should we distinguish H Block spectrum for purposes of evaluating
mobile spectrum holdings? Commenters should discuss and quantify any
costs and benefits associated with any proposals on the applicability
of spectrum holdings policies to H Block spectrum.
3. License Term, Performance Requirements, Renewal Criteria, Permanent
Discontinuance of Operations
a. License Term
71. We propose to establish a 10-year term for licenses for the H
Block. The Communications Act does not specify a term limit for AWS
band licenses. The
[[Page 1178]]
Commission has adopted 10-year license terms for most wireless radio
services licenses. To maintain this consistency among wireless
services, in the AWS-2 NPRM, the Commission proposed that H Block
licenses have a term of 10 years. We continue to believe that a 10-year
license term is appropriate, and consequently propose, a 10 year
license term for the H Block spectrum. We seek comment on this
proposal, including any costs and benefits of the proposal. In
addition, we invite commenters to submit alternate proposals for the
appropriate license term, which should similarly include a discussion
on the costs and benefits.
72. Under our license term proposal, if a license in these bands is
partitioned or disaggregated, any partitionee or disaggregatee would be
authorized to hold its license for the remainder of the partitioner's
or disaggregator's original license term. This approach is similar to
the partitioning provisions the Commission adopted for BRS, for
broadband PCS licensees, for the 700 MHz band licensees, and for AWS-1
licenses at 1710-1755 MHz and 2110-2155 MHz, and AWS-4. We emphasize
that nothing in our proposal is intended to enable a licensee, by
partitioning or disaggregating the license, to confer greater rights
than it was awarded under the terms of its license grant. Similarly,
nothing in our proposal is intended to enable any partitionee or
disaggregatee to obtain rights in excess of those previously possessed
by the underlying licensee. We seek comment on these proposals,
including the cost and benefits thereof.
b. Performance Requirements
73. The Commission establishes performance requirements to promote
the efficient deployment of wireless services, including to rural
areas, and ensure that spectrum is used. Over the years, the Commission
has applied different performance and construction requirements to
different spectrum bands. For example, within four (4) years, an AWS-4
licensee must provide reliable terrestrial signal coverage and offer
terrestrial service to at least forty (40) percent of its total AWS-4
population. Within seven (7) years, an AWS-4 licensee must provide
reliable terrestrial signal coverage and offer terrestrial service to
at least seventy (70) percent of the population in each of its license
areas. Similarly, for licensees operating in the 2.3 GHz Wireless
Communications Services (WCS) band, the Commission adopted performance
requirements that included a population-based construction requirements
(40 percent of the license area's population within four (4) years and
75 percent within six-and-a-half (6.5) years) and reporting
requirements. In the AWS-2 NPRM, the Commission broadly sought comment
on whether it should establish any specific performance requirements in
the H Block, including interim performance requirements.
74. Today, we continue to believe that performance requirements
play a critical role in ensuring that licensed spectrum does not lie
fallow, and now propose to establish the following performance
requirements. We seek comment on the following buildout requirements
for the H Block:
H Block Interim Buildout Requirement: Within four (4)
years, an H Block licensee shall provide signal coverage and offer
service to at least forty (40) percent of the population in each of its
license areas.
H Block Final Buildout Requirement: By the end of the
license term, i.e., within ten (10) years, an H Block licensee shall
provide signal coverage and offer service to at least seventy (70)
percent of the population in each of its license areas.
75. We propose these performance requirements in an effort to
foster deployment expeditiously in the H Block for the provision of
wireless, terrestrial broadband service, and to enable the Commission
to take appropriate corrective action should such deployment fail to
occur. Specifically, the interim benchmark at four years would ensure
that a licensee begins deploying facilities quickly, thereby evidencing
meaningful utilization of the spectrum. At the same time, by proposing
a relatively low population threshold in the interim benchmark, we
acknowledge that large-scale network deployment may ramp up over time
as equipment becomes available and a customer base is established. In
addition, by proposing a final buildout requirement timeline of ten
years, we believe we allow a reasonable amount of time for any H Block
licensee to attain nationwide scale.
76. We seek comment on these proposed buildout requirements. We
encourage comment on whether our proposals represent the appropriate
balance between requirements that are too low as to not result in
meaningful buildout and those that would be so high as to be
unattainable. We also seek comment on whether other benchmarks
represent more appropriate requirements? Commenters should discuss and
quantify how any supported buildout requirements will affect investment
and innovation as well as discuss and quantify other costs and benefits
associated with the proposal.
77. Agreements between H Block and AWS-4 licensees. In the AWS-4
Report and Order, we permit AWS-4 licensees to enter into private
operator-to-operator agreements with all 1995-2000 MHz licensees to so
that AWS-4 operations above 2000 MHz may have an OOBE level in excess
of 70 + 10 log10(P) dB into the 1995-2000 MHz band. In the
event that an AWS-4 licensee reaches such an agreement with all 1995-
2000 MHz licensees, should the H Block licensees' performance
requirements be reduced or eliminated because accepting a higher OOBE
level increases the use of the 2000-2005 MHz band? Implementing such an
approach would enable a market-based solution for AWS-4 licensees who
seek to remove technical rules designed to protect the H Block, by
allowing them to acquire H Block licenses at auction (or, later, on the
secondary market) and prioritize deployment of AWS-4 over H Block.
78. Penalties for Failure to Meet Construction Requirements. Along
with construction benchmarks, we seek to adopt meaningful and
enforceable consequences, or penalties, for failing to meet the
benchmarks. Building on what we have learned from other bands and
considering the unique characteristics of the H Block, we propose and
seek comment, including on the costs and benefits, of the following
penalties in the event an H Block licensee fails to satisfy its
buildout requirements:
In the event an H Block licensee fails to meet the H Block
Interim Buildout Requirement in its license area, the term of the
license shall be reduced by two years.
In the event an H Block licensee fails to meet the H Block
Final Buildout Requirement in its license area, the H Block license for
each license area in which it fails to meet the buildout requirement
shall terminate automatically without Commission action.
79. We further propose that, in the event a licensee's authority to
operate terminates, the licensee's spectrum rights would become
available for reassignment pursuant to the competitive bidding
provisions of section 309(j). Further, consistent with the Commission's
rules for other spectrum bands, including AWS-1 and the Broadband Radio
Service, we propose that any H Block licensee who forfeits its license
for failure to meet its performance requirements would be precluded
from regaining the license.
80. Compliance Procedures. Consistent with Sec. 1.946(d) of the
Commission's rules, we propose to
[[Page 1179]]
require H Block licensees to demonstrate compliance with the
performance requirements by filing a construction notification within
15 days of the relevant milestone certifying that they have met the
applicable performance benchmark. Further, we propose that each
construction notification include electronic coverage maps and
supporting documentation, which must be truthful and accurate and must
not omit material information that is necessary for the Commission to
determine compliance with its performance requirements.
81. Electronic coverage maps must accurately depict the boundaries
of each license area in the licensee's service territory. If a licensee
does not provide reliable signal coverage to an entire license area, we
propose that its map must accurately depict the boundaries of the area
or areas within each license area not being served. Further, we propose
that each licensee also must file supporting documentation certifying
the type of service it is providing for each licensed area within its
service territory and the type of technology used to provide such
service. Supporting documentation must include the assumptions used to
create the coverage maps, including the propagation model and the
signal strength necessary to provide reliable service with the
licensee's technology.
c. Renewal Criteria
82. Pursuant to section 308(b) of the Communications Act, the
Commission may require renewal applicants to ``set forth such facts as
the Commission by regulation may prescribe as to the citizenship,
character, and financial, technical, and other qualifications of the
applicant to operate the station'' as well as ``such other information
as it may require.'' We propose to adopt H Block license renewal
requirements consistent with those adopted in the 700 MHz First Report
and Order and the AWS-4 Report and Order, which form the basis of the
renewal paradigm proposed in our Wireless Radio Services Renewal NPRM.
See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, 72 FR
24238 (May 2, 2007) (700 MHz First Report and Order); AWS-4 Report and
Order; Amendment of parts 1, 22, 24, 27, 74, 80, 90, 95, and 101 To
Establish Uniform License Renewal, Discontinuance of Operation, and
Geographic Partitioning and Spectrum Disaggregation Rules and Policies
for Certain Wireless Radio Services, 75 FR 38959 (July 7, 2010) (WRS
Renewal NPRM and Order). We emphasize that, as the Commission made
clear in these proceedings, a licensee's performance showing and its
renewal showing are two distinct showings. A performance showing
provides a snapshot in time of the level of a licensee's service, while
a renewal showing provides information regarding the level and types of
service provided over the entire license term.
83. We propose that applicants for renewal of H Block licenses file
a ``renewal showing,'' in which they demonstrate that they have
provided, and are continuing to provide, service to the public, and
that they are compliant with the Communications Act and the
Commission's rules and policies. In the 700 MHz First Report and Order,
the Commission explained that in the renewal context, the Commission
considers ``a variety of factors including the level and quality of
service, whether service was ever interrupted or discontinued, whether
service has been provided to rural areas, and any other factors
associated with a licensee's level of service to the public.'' As we
adopted in the AWS-4 Report and Order, we also propose to consider the
extent to which service is provided to qualifying tribal lands. We
propose that these same factors should be considered when evaluating
renewal showings for the H Block and seek comment on this approach.
Commenters should discuss and quantify the costs and benefits of this
approach.
84. As explained above, today we are proposing that H Block
licensees meet four and ten-year performance obligations. We therefore
seek comment on whether the public interest would be served by awarding
H Block licensees renewal expectancies where they maintain the level of
service demonstrated at the ten year performance benchmark through the
end of their license term, provided that they have otherwise complied
with the Communications Act and the Commission's rules and policies
during their license term. We also seek comment on whether H Block
licensees should obtain a renewal expectancy for subsequent license
terms, if they continue to provide at least the level of service
demonstrated at the ten year performance benchmark through the end of
any subsequent license terms. Commenters should discuss and quantify
the costs and benefits of this approach.
85. Finally, consistent with the AWS-4 Report and Order, the 700
MHz First Report and Order and the WRS Renewals NPRM and Order, we
propose to prohibit the filing of mutually exclusive renewal
applications, and that if a license is not renewed, the associated
spectrum would be returned to the Commission for reassignment. We seek
comment on these proposals, including on the associated costs and
benefits.
d. Permanent Discontinuance of Operations
86. We also request comment on the Commission's rules governing the
permanent discontinuance of operations, which are intended to afford
licensees operational flexibility to use their spectrum efficiently
while ensuring that spectrum does not lay idle for extended periods.
Under Sec. 1.955(a)(3) of the Commission's rules, an authorization
will automatically terminate, without specific Commission action, if
service is ``permanently discontinued.'' For the H Block, we propose to
define ``permanently discontinued'' as a period of 180 consecutive days
during which a licensee does not operate and does not serve at least
one subscriber that is not affiliated with, controlled by, or related
to the provider. We believe this definition strikes an appropriate
balance between our twin goals of providing licensees operational
flexibility while ensuring that spectrum does not lie fallow. Licensees
would not be subject to this requirement until the date of the first
performance requirement benchmark, which is proposed as 4 years from
the license grant, so they will have adequate time to construct their
network. In addition, consistent with Sec. 1.955(a)(3) of the
Commission's rules, we propose that, if an H Block licensee permanently
discontinues service, the licensee must notify the Commission of the
discontinuance within 10 days by filing FCC Form 601 or 605 and
requesting license cancellation. An authorization will automatically
terminate without specific Commission action if service is permanently
discontinued even if a licensee fails to file the required form. We
seek comment on these proposals, including the associated costs and
benefits.
4. Secondary Markets
a. Partitioning and Disaggregation
87. The Commission's part 27 rules generally allow for geographic
partitioning and spectrum disaggregation. Geographic partitioning
refers to the assignment of geographic portions of a license to another
licensee along geopolitical or other boundaries. Spectrum
disaggregation refers to the assignment of discrete amounts of spectrum
under the license to another entity. Disaggregation allows for multiple
transmitters in the same geographic area operated by different
companies on adjacent frequencies in
[[Page 1180]]
the same band. As the Commission noted when first establishing
partitioning and disaggregation rules, allowing such flexibility could
facilitate the efficient use of spectrum by enabling licensees to make
offerings directly responsive to market demands for particular types of
services, increasing competition by allowing market entry by new
entrants, and expediting provision of services that might not otherwise
be provided in the near term.
88. We propose to permit partitioning and disaggregation by
licensees in the H Block. To ensure that the public interest would be
served if partitioning or disaggregation is allowed, we propose
requiring each H Block licensee that is a party to a partitioning,
disaggregation or combination of both to independently meet the
applicable performance and renewal requirements. We believe this
approach would facilitate efficient spectrum use, while enabling
service providers to configure geographic area licenses and spectrum
blocks to meet their operational needs. We seek comment on these
proposals. Commenters should discuss and quantify the costs and
benefits of these proposals with respect to competition, innovation,
and investment.
89. We also seek comment on whether the Commission should adopt
additional or different mechanisms to encourage partitioning and/or
disaggregation of H Block spectrum and the extent to which such
policies ultimately may promote more service, especially in rural
areas. Commenters should discuss and quantify the costs and benefits of
promoting more service using mechanisms to encourage partitioning and
disaggregation of H Block spectrum, including the effects of the
proposal.
b. Spectrum Leasing
90. In 2003, in order to promote more efficient use of terrestrial
wireless spectrum through secondary market transactions, while also
eliminating regulatory uncertainty, the Commission adopted a
comprehensive set of policies and rules to govern spectrum-leasing
arrangements between terrestrial licensees and spectrum lessees. These
policies and rules enable terrestrially-based Wireless Radio Service
licensees holding ``exclusive use'' spectrum rights to lease some or
all of the spectrum usage rights associated with their licenses to
third party spectrum lessees, which then are permitted to provide
wireless services consistent with the underlying license authorization.
Through these actions, the Commission sought to promote more efficient,
innovative, and dynamic use of the terrestrial spectrum, expand the
scope of available wireless services and devices, enhance economic
opportunities for accessing spectrum, and promote competition among
terrestrial wireless service providers. In 2004, the Commission built
upon this spectrum leasing framework by establishing immediate approval
procedures for certain categories of terrestrial spectrum leasing
arrangements and extending the spectrum leasing policies to additional
Wireless Radio Services.
91. We propose that the spectrum leasing policies and rules
established in those proceedings be applied to the H Block in the same
manner that those policies apply to other part 27 services. We seek
comment on this proposal. Commenters should discuss the effects on
competition, innovation and investment, and on extending our secondary
spectrum leasing policies and rules to the H Block.
5. Other Operating Requirements
92. Even though licenses in the H Block may be issued pursuant to
one rule part, licensees in this band may be required to comply with
rules contained in other parts of the Commission's rules by virtue of
the particular services they provide. For example:
Applicants and licensees would be subject to the
application filing procedures for the Universal Licensing System, set
forth in part 1 of our rules.
Licensees would be required to comply with the practices
and procedures listed in part 1 of our rules for license applications,
adjudicatory proceedings, etc.
Licensees would be required to comply with the
Commission's environmental provisions, including Sec. 1.1307.
Licensees would be required to comply with the antenna
structure provisions of part 17 of our rules.
To the extent a licensee provides a Commercial Mobile
Radio Service, such service would be subject to the provisions of part
20 of the Commission's rules, including 911/E911 and hearing aid-
compatibility requirements, along with the provisions in the rule part
under which the license was issued. Part 20 applies to all CMRS
providers, even though the stations may be licensed under other parts
of our rules.
To the extent a licensee provides interconnected VoIP
services, the licensee would be subject to the E911 service
requirements set forth in part 9 of our rules.
The application of general provisions of parts 22, 24, 27,
or 101 would include rules related to equal employment opportunity,
etc.
93. We seek comment on whether we need to modify any of these rules
to ensure that H Block licensees are covered under the necessary
provisions. We seek comment on applying these rules to the H Block
spectrum and specifically on any rules that would be affected by our
proposal to apply elements of the framework of these parts, whether
separately or in conjunction with other requirements. What are the
potential problems that may be associated with the Commission's
adoption of any of these potential requirements, and how do they
compare to the potential benefits?
6. Facilitating Access to Spectrum and the Provision of Service to
Tribal Lands
94. The Commission currently has under consideration various
provisions and policies intended to promote greater use of spectrum
over Tribal lands. We propose to extend any rules and policies adopted
in that proceeding to any licenses that may be issued through
competitive bidding in this proceeding. We seek comment on this
proposal, including any costs and benefits.
F. Procedures for Any H Block Licenses Subject to Assignment by
Competitive Bidding
95. As discussed above, if we adopt a geographic area licensing
scheme for the 1915-1920 MHz and 1995-2000 MHz bands, we will resolve
mutually exclusive applications through competitive bidding, consistent
with our statutory mandate.
1. Application of Part 1 Competitive Bidding Rules
96. We propose that the Commission would conduct any auction for H
Block licenses in conformity with the general competitive bidding rules
set forth in part 1, subpart Q, of the Commission's rules, and
substantially consistent with the competitive 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 for its part 1 general competitive bidding rules 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
[[Page 1181]]
minimum opening bids and/or reserve prices, would be determined by the
Wireless Telecommunications Bureau pursuant to its delegated authority.
We seek comment on this approach, including the costs and benefits of
this approach. We also seek comment on whether any of our part 1 rules
would be inappropriate or should be modified for an auction of licenses
in the H Block.
2. Revision to Part 1 Certification Procedures
97. Section 6004 of the Spectrum Act prohibits ``a person who has
been, for reasons of national security, barred by any agency of the
Federal Government from bidding on a contract, participating in an
auction, or receiving a grant'' from participating in a system of
competitive bidding under section 309(j) required to be conducted under
Title VI of the Spectrum Act. Accordingly, we propose to require that
an auction applicant certify, under penalty of perjury, that it and all
of the related individuals and entities required to be disclosed on the
short-form application are not such persons. For purposes of this
certification, we propose to define ``person'' as an individual,
partnership, association, joint-stock company, trust, or corporation.
We also propose to define ``reasons of national security'' to mean
matters relating to the national defense and foreign relations of the
United States. Our existing rules also include various certifications
that a party must make in any application to participate in competitive
bidding. As with other required certifications, failure to include the
required certification by the applicable filing deadline would render
the application unacceptable for filing, and the application would be
dismissed with prejudice. We seek comment on this proposal.
3. Small Business Provisions for Geographic Area Licenses
98. 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 Communications 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 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 this mandate is through the award of bidding credits to small
businesses.
99. The Commission has previously 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. Further, the Commission, while standardizing
many auction rules, has determined that it would continue a service-by-
service approach to defining small businesses.
100. In the event that the Commission assigns exclusive geographic
area licenses for the H Block, we believe that this spectrum would be
employed for purposes similar to those for which the AWS-1 band is
used. We therefore propose to establish the same small business size
standards and associated bidding credits for the H Block as the
Commission adopted for the AWS-1 band. We note that these small
business size standards and associated bidding credits were proposed
for the AWS-1 band because of the similarities between the AWS-1
service and the broadband PCS service and the Commission followed this
approach when proposing small business size standards and associated
bidding credits in the AWS 2 NPRM. Thus, we propose to define a small
business as an entity with average gross revenues for the preceding
three years not exceeding $40 million, and a very small business as an
entity with average gross revenues for the preceding three years not
exceeding $15 million. We seek comment on this proposal, including the
costs and benefits of the proposal.
101. We propose to provide small businesses with a bidding credit
of 15 percent and very small businesses with a bidding credit of 25
percent, as set forth in the standardized schedule in part 1 of our
rules. We seek comment on the use of these standards and associated
bidding credits, with particular focus on the appropriate definitions
of small businesses and very small businesses as they may relate to the
size of the geographic area to be served and the spectrum allocated to
each license. Commenters should discuss and quantify any costs or
benefits associated with these standards and associated bidding credits
as they relate to the proposed geographic areas. In discussing these
issues, commenters are requested to address and quantify the expected
capital requirements for services in these bands and other
characteristics of the service. Commenters are also invited to use
comparisons with other services for which the Commission has already
established auction procedures as a basis for their comments and any
quantification of costs and benefits regarding the appropriate small
business size standards.
102. In establishing the criteria for small business bidding
credits, we acknowledge the difficulty in accurately predicting the
market forces that will exist at the time these frequencies are
licensed. Thus, our forecasts of types of services that will be offered
over these bands may require adjustment depending upon ongoing
technological developments and changes in market conditions.
103. We seek comment on whether the small business provisions we
propose today are sufficient to promote participation by businesses
owned by minorities and women, as well as rural telephone companies. To
the extent that commenters propose additional provisions to ensure
participation by minority-owned or women-owned businesses, they should
address how such provisions should be crafted to meet the relevant
standards of judicial review.
104. In addition, we note that under our part 1 rules, a winning
bidder for a market will be eligible to receive a bidding credit for
serving a qualifying tribal land within that market, provided that it
complies with the applicable competitive bidding rules. The Commission
currently has under consideration various provisions and policies
intended to promote greater use of spectrum over tribal lands. We
propose to extend any rules and policies adopted in that proceeding to
any H Block licenses that may be assigned through competitive bidding.
We seek comment on this proposal.
III. Procedural Matters
A. Ex Parte Presentations
105. The proceedings this Notice of Proposed Rulemaking initiate
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
[[Page 1182]]
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 rule
Sec. 1.1206(b). In proceedings governed by rule 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. Initial Regulatory Flexibility Analysis
106. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities by the
policies and rules proposed in this Notice of Proposed Rulemaking
(NPRM). Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines specified in the NPRM for comments. 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.
C. Need for, and Objectives of, the Proposed Rules
107. Wireless broadband is a key component of economic growth, job
creation and global competitiveness because consumers are increasingly
using wireless broadband services to assist them in their everyday
lives. The explosive growth of wireless broadband services has created
increased demand for wireless spectrum, which is expected to continue
increasing, despite technological developments that allow for more
efficient spectrum use. Unleashing more spectrum for broadband is
essential to meeting this demand In this NPRM, we seek to increase the
nation's supply of spectrum for mobile broadband by proposing rules for
licensed fixed and mobile services, including advanced wireless
services (AWS), in the H Block. These service rules would make
available 10 MHz of spectrum for flexible use in accordance with the
Spectrum Act, without causing harmful interference to PCS licensees. In
proposing terrestrial service rules for the band, which include
technical rules to protect against harmful interference, licensing
rules to establish geographic license areas and spectrum block sizes,
and performance requirements to promote robust buildout, we advance
toward enabling rapid and efficient deployment in the band. We do so by
proposing service, technical, assignment, and licensing rules for this
spectrum that generally follow the Commission's part 27 rules that
generally govern flexible use terrestrial wireless service--except that
in order to protect PCS licenses, our proposed rules are more stringent
in certain respects. Overall, these proposals are designed to provide
for flexible use of this spectrum by allowing licensees to choose their
type of service offerings, to encourage innovation and investment in
mobile broadband use in this spectrum, and to provide a stable
regulatory environment in which broadband deployment would be able to
develop through the application of standard terrestrial wireless rules.
The market-oriented licensing framework for these bands would ensure
that this spectrum is efficiently utilized and will foster the
development of new and innovative technologies and services, as well as
encourage the growth and development of broadband services, ultimately
leading to greater benefits to consumers.
D. Legal Basis
108. The proposed action is authorized pursuant to sections 1, 2,
4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333,
1404, and 1451 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 152, 154(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319,
324, 332, 333, 1404, and 1451.
E. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
109. 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 and policies, 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.
110. 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
that encompass entities that could be directly affected by the
proposals under consideration. As of 2009, small businesses represented
99.9% of the 27.5 million businesses in the United States, according to
the SBA. Additionally, 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, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand.''
Census Bureau data for 2007 indicate that there were 89,527
governmental jurisdictions in the United States. We estimate that, of
this total, as many as 88,761 entities may qualify as ``small
governmental jurisdictions.'' Thus, we estimate that most governmental
jurisdictions are small.
111. Wireless Telecommunications Carriers (except satellite). The
NPRM proposes to apply various Commission policies and rules to
terrestrial service in the MSS bands. We cannot predict who may in the
future become a licensee or lease spectrum for terrestrial use in these
bands. In general, any wireless telecommunications provider would be
eligible to become an Advanced Wireless Service licensee or lease
spectrum from the MSS or AWS
[[Page 1183]]
licensees. This industry comprises establishments engaged in operating
and maintaining switching and transmission facilities to provide
communications via the airwaves. Establishments in this industry have
spectrum licenses and provide services using that spectrum, such as
cellular phone services, paging services, wireless Internet access, and
wireless video services. 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. 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 employment of 999 or fewer employees and 15 had employment of
1000 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.
F. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
112. This NPRM contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB)
for review under section 3507(d) of the PRA. The projected reporting,
recordkeeping, and other compliance requirements resulting from the
NPRM will apply to all entities in the same manner. The Commission
believes that applying the same rules equally to all entities in this
context promotes fairness. The Commission does not believe that the
costs and/or administrative burdens associated with the rules will
unduly burden small entities. The revisions the Commission adopts
should benefit small entities by giving them more information, more
flexibility, and more options for gaining access to valuable wireless
spectrum.
113. OMB, the general public, and other Federal agencies are
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that
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 the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
G. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
114. 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 such 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 such small
entities.''
115. The proposal to license the H Block under Economic Areas (EA)
geographic size licenses will provide regulatory parity with other AWS
bands that are licensed on an EA basis, such as AWS-1 licenses.
Additionally, assigning H Block in EA geographic areas would allow H
Block licensees to make adjustments to suit their individual needs. EA
license areas are small enough to provide spectrum access opportunities
for smaller carriers. EA license areas also nest within and may be
aggregated up to larger license areas. Depending on the licensing
mechanism we adopt, licensees may adjust their geographic coverage
through auction or through secondary markets. This proposal should
enable H Block providers, or any entities, whether large or small,
providing service in other AWS bands to more easily adjust their
spectrum to build their networks pursuant to individual business plans.
116. The technical rules of the NPRM will protect entities
operating in nearby spectrum bands from harmful interference, which may
include small entities. These technical rules are based on the rules
for AWS-1 spectrum, with specific additions or modifications designed
to protect broadband PCS services operating in the 1930-1995 MHz band,
as well as future services operating in the 2020-2025 MHz band.
117. The NPRM proposal pertaining to how the H Block licenses will
be assigned includes proposals to assist small entities in competitive
bidding. Specifically, small entities will benefit from the proposal to
provide small businesses with a bidding credit of 15 percent and very
small businesses with a bidding credit of 25 percent. Providing small
businesses and very small businesses with bidding credits will provide
an economic benefit to small entities by making it easier for small
entities to acquire spectrum or access to spectrum in these bands.
118. The NPRM also proposes to provide H Block licensees with the
flexibility to provide any fixed or mobile service that is consistent
with the allocations for this spectrum, which is consistent with other
spectrum allocated or designated for licensed fixed and mobile
services, e.g., AWS-1. The NPRM further proposes to generally license
this spectrum under the Commission's market-oriented part 27 rules,
except that certain restrictions would apply. These proposals include
applying the Commission's secondary market policies and rules to all
transactions involving the use of H Block bands for terrestrial
services, which will provide greater predictability and regulatory
parity with bands licensed for terrestrial mobile broadband service.
This proposal should make it easier for H Block providers to enter
secondary market arrangements involving terrestrial use of their
spectrum. The secondary market rules apply equally to all entities,
whether small or large. As a result, we believe that this proposal will
provide an economic benefit to small entities by making it easier for
entities, whether large or small, to enter into secondary market
arrangements for H Block spectrum.
H. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
119. None.
IV. Ordering Clauses
120. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i),
201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404,
and 1451 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152, 154(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324,
332, 333, 1404, and 1451, that this Notice of Proposed Rulemaking is
hereby adopted.
121. It is further ordered that notice is hereby given of the
proposed
[[Page 1184]]
regulatory changes described in this notice and that comment is sought
on these proposals.
122. It is further ordered that the Initial Regulatory Flexibility
Analysis is adopted.
123. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Parts 1 and 27
Communications common carriers, Radio.
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 27 as
follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 is revised 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), 309 and 1404.
0
2. Section 1.949 is amended by adding paragraph (c) to read as follows:
Sec. 1.949 Application for renewal of license.
* * * * *
(c) Renewal Showing. An applicant for renewal of a geographic-area
authorization in the 1915-1920 MHz and 1995-2000 service bands must
make a renewal showing, independent of its performance requirements, as
a condition of renewal. The showing must include a detailed description
of the applicant's provision of service during the entire license
period and address:
(1) The level and quality of service provided by the applicant
(e.g., the population served, the area served, the number of
subscribers, the services offered);
(2) The date service commenced, whether service was ever
interrupted, and the duration of any interruption or outage;
(3) The extent to which service is provided to rural areas;
(4) The extent to which service is provided to qualifying tribal
land as defined in Sec. 1.2110(f)(3)(i); and
(5) Any other factors associated with the level of service to the
public.
0
3. Section 1.2105 is amended by adding paragraph (a)(2)(xii) to read as
follows:
Sec. 1.2105 Bidding application and certification procedures;
prohibition of certain communications.
(a) * * *
(2) * * *
(xii) For auctions required to be conducted under Title VI of the
Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96)
the Commission may require certification under penalty of perjury that
the applicant and all of the person(s) disclosed under paragraph
(a)(2)(ii) of this section are not person(s) who have been, for reasons
of national security, barred by any agency of the Federal Government
from bidding on a contract, participating in an auction, or receiving a
grant. For the purposes of this certification, the term ``person''
means an individual, partnership, association, joint-stock company,
trust, or corporation, and the term ``reasons of national security''
means matters relating to the national defense and foreign relations of
the United States.
* * * * *
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
0
4. The authority citation for part 27 is revised to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336,
337, and 1451 unless otherwise noted.
0
5. Section 27.1 is amended by adding paragraph (b)(10) to read as
follows:
Sec. 27.1 Basis and purpose.
* * * * *
(b) * * *
(10) 1915-1920 MHz and 1995-2000 MHz.
* * * * *
0
6. Section 27.4 is amended by revising the definition of ``Advanced
wireless service (AWS)'' to read as follows:
Sec. 27.4 Terms and definitions.
Advanced wireless service (AWS). A radiocommunication service
licensed pursuant to this part for the frequency bands specified in
Sec. 27.5(h) or Sec. 27.5(j).
* * * * *
0
7. Section 27.5 is amended by adding paragraph (j) to read as follows:
Sec. 27.5 Frequencies.
* * * * *
(j) 1915-1920 MHz and 1995-2000 MHz bands. The paired 1915-1920 MHz
and 1995-2000 MHz bands are available for assignment on an Economic
Area basis.
0
8. Section 27.6 is amended by adding paragraph (i) to read as follows:
Sec. 27.6 Service areas.
* * * * *
(i) 1915-1920 MHz and 1995-2000 MHz bands. AWS service areas for
the 1915-1920 MHz and 1995-2000 MHz bands are based on Economic Areas
(EAs) as defined in paragraph (a) of this section.
0
9. Section 27.13 is amended by adding paragraph (i) to read as follows:
Sec. 27.13 License period.
* * * * *
(i) 1915-1920 MHz and 1995-2000 MHz bands. Authorizations for 1915-
1920 MHz and 1995-2000 MHz bands will have a term not to exceed ten
years from the date of issuance or renewal.
0
10. Section 27. 14 is amended by revising the first sentence of
paragraphs (a), (f), and (k), and adding paragraph (q) to read as
follows:
Sec. 27.14 Construction requirements; criteria for renewal.
(a) AWS and WCS licensees, with the exception of WCS licensees
holding authorizations for Block A in the 698-704 MHz and 728-734 MHz
bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the
722-728 MHz band, Block C, C1, or C2 in the 746-757 MHz and 776-787 MHz
bands, Block D in the 758-763 MHz and 788-793 MHz bands, Block A in the
2305-2310 MHz and 2350-2355 MHz bands, Block B in the 2310-2315 MHz and
2355-2360 MHz bands, Block C in the 2315-2320 MHz band, and Block D in
the 2345-2350 MHz band, and with the exception of licensees holding AWS
authorizations in the 1915-1920 MHz and 1995-2000 MHz bands, must, as a
performance requirement, make a showing of ``substantial service'' in
their license area within the prescribed license term set forth in
Sec. 27.13. * * *
* * * * *
(f) Comparative renewal proceedings do not apply to WCS licensees
holding authorizations for the 698-746 MHz, 747-762 MHz, and 777-792
MHz bands and licensees holding AWS authorizations for the 1915-1920
MHz and 1995-2000 MHz bands. * * *
* * * * *
(k) Licensees holding WCS or AWS authorizations in the spectrum
blocks enumerated in paragraphs (g), (h), (i), or (q) of this section,
including any licensee that obtained its license pursuant to the
procedures set forth in paragraph (j) of this section, shall
demonstrate compliance with performance requirements by filing a
construction notification with the Commission, within 15 days of the
expiration of the applicable benchmark, in accordance with the
provisions set forth in Sec. 1.946(d) of this chapter. * * *
* * * * *
[[Page 1185]]
(q) The following provisions apply to any licensee holding an AWS
authorization in the 1915-1920 MHz and 1995-2000 MHz bands (an ``H
Block licensee''):
(1) An H Block licensee shall provide signal coverage and offer
service within four (4) years from the date of the initial license to
at least forty (40) percent of the total population in each service
area that it has licensed in the 1915-1920 MHz and 1995-2000 MHz bands
(``H Block Interim Buildout Requirement'').
(2) An H Block licensee shall provide signal coverage and offer
service within ten (10) years from the date of the initial license to
at least seventy (70) percent of the population in each of its licensed
areas in the 1915-1920 MHz and 1995-2000 MHz bands (``H Block Final
Buildout Requirement'').
(3) If an H Block licensee fails to establish that it meets the H
Block Interim Buildout Requirement for a particular licensed area, then
the H Block Final Buildout Requirement (in this paragraph (q)) and the
H Block license term (as set forth in Sec. 27.13) for each license
area in which it fails to meet the H Block Interim Buildout Requirement
shall be accelerated by two years (from ten to eight years).
(4) If an H Block licensee fails to establish that it meets the H
Block Final Buildout Requirement for a particular licensed areas in the
1915-1920 MHz and 1995-2000 MHz bands, its authorization for each
license area in which it fails to meet the H Block Final Buildout
Requirement shall terminate automatically without Commission action.
The H Block licensee that has its license automatically terminate under
paragraph (q) of this subsection will be ineligible to regain it if the
Commission makes the license available at a later date.
(5) To demonstrate compliance with these performance requirements,
licensees shall use the most recently available U.S. Census Data at the
time of measurement and shall base their measurements of population
served on areas no larger than the Census Tract level. The population
within a specific Census Tract (or other acceptable identifier) will
only be deemed served by the licensee if it provides signal coverage to
and offers service within the specific Census Tract (or other
acceptable identifier). To the extent the Census Tract (or other
acceptable identifier) extends beyond the boundaries of a license area,
a licensee with authorizations for such areas may only include the
population within the Census Tract (or other acceptable identifier)
towards meeting the performance requirement of a single, individual
license.
0
11. Section 27.15 is amended by revising the first sentence in
paragraph (d)(1)(i); adding paragraph (d)(1)(iii); revising the first
sentence in paragraph (d)(2)(i), and adding paragraph (d)(2)(iii) to
read as follows:
Sec. 27.15 Geographic partitioning and spectrum disaggregation.
* * * * *
(d) * * *
(1) * * *
(i) Except for WCS licensees holding authorizations for Block A in
the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, or C2
in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz
and 788-793 MHz bands; and for licensees holding AWS authorizations in
the 1915-1920 MHz and 1995-2000 MHz bands; the following rules apply to
WCS and AWS licensees holding authorizations for purposes of
implementing the construction requirements set forth in Sec. 27.14. *
* *
* * * * *
(iii) For licensees holding AWS authorizations in the 1915-1920 MHz
and 1995-2000 MHz bands, the following rules apply for purposes of
implementing the construction requirements set forth in Sec. 27.14.
Each party to a geographic partitioning must individually meet any
service-specific performance requirements (i.e., construction and
operation requirements). If a partitioner or partitionee fails to meet
any service-specific performance requirements on or before the required
date, then the consequences for this failure shall be those enumerated
in Sec. 27.14(q).
(2) * * *
(i) Except for WCS licensees holding authorizations for Block A in
the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, or C2
in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz
and 788-793 MHz bands; and for licensees holding AWS authorizations in
1915-1920 MHz and 1995-2000 MHz bands; the following rules apply to WCS
and AWS licensees holding authorizations for purposes of implementing
the construction requirements set forth in Sec. 27.14. * * *
* * * * *
(iii) For licensees holding AWS authorizations in the 1915-1920 MHz
and 1995-2000 MHz bands, the following rules apply for purposes of
implementing the construction requirements set forth in Sec. 27.14.
Each party to a spectrum disaggregation must individually meet any
service-specific performance requirements (i.e., construction and
operation requirements). If a disaggregator or a disagregatee fails to
meet any service-specific performance requirements on or before the
required date, then the consequences for this failure shall be those
enumerated in Sec. 27.14(q).
0
12. Section 27.17 is added to read as follows:
Sec. 27.17 Discontinuance of service in the 1915-1920 MHz and 1995-
2000 MHz bands.
(a) Termination of Authorization. A licensee's AWS authorization in
the 1915-1920 MHz and 1995-2000 MHz bands will automatically terminate,
without specific Commission action, without specific Commission action,
if it permanently discontinues service after meeting the H Block
Interim Buildout Requirement specified in Sec. 27.14.
(b) Permanent discontinuance of service is defined as 180
consecutive days during which a licensee holding AWS authority in the
1915-1920 MHz and 1995-2000 MHz bands does not operate or, in the case
of a commercial mobile radio service provider, does not provide service
to at least one subscriber that is not affiliated with, controlled by,
or related to the providing carrier.
(c) Filing Requirements. A licensee of the 1915-1920 MHz and 1995-
2000 MHz bands that permanently discontinues service as defined in this
section must notify the Commission of the discontinuance within 10 days
by filing FCC Form 601 or 605 requesting license cancellation. An
authorization will automatically terminate, without specific Commission
action, if service is permanently discontinued as defined in this
section, even if a licensee fails to file the required form requesting
license cancellation.
0
13. Section 27.50 is amended by revising paragraph (d) introductory
text, paragraphs (d)(1) and (2) introductory text, and adding paragraph
(d)(7), to read as follows:
Sec. 27.50 Power limits and duty cycle.
* * * * *
(d) The following power and antenna height requirements apply to
stations transmitting in the 1710-1755 MHz, 2110-2155 MHz, 1915-1920
MHz and 1995-2000 MHz bands:
(1) The power of each fixed or base station transmitting in the
1995-2000 MHz or the 2110-2155 MHz band and located in any county with
population density of 100 or fewer persons per
[[Page 1186]]
square mile, based upon the most recently available population
statistics from the Bureau of the Census, is limited to:
* * * * *
(2) The power of each fixed or base station transmitting in the
1995-2000 MHz or the 2110-2155 MHz band and situated in any geographic
location other than that described in paragraph (d)(1) is limited to:
* * * * *
(7) Fixed, mobile and portable (hand-held) stations operating in
the 1915-1920 MHz band are limited to 1 Watt EIRP, except that the
total power of any portion of an emission that falls within the 1917-
1920 MHz band may not exceed 4 milliwatts (6 dBm).
* * * * *
0
14. Section 27.53 is amended by revising paragraph (h) to read as
follows:
Sec. 27.53 Emission limits.
* * * * *
(h) AWS Emission Limits. (1) General Protection Levels. Except as
otherwise specified below, for operations in the 1710-1755 MHz, 2110-
2155 MHz, 1915-1920 MHz, and 1995-2000 MHz bands, the power of any
emission outside a licensee's frequency block shall be attenuated below
the transmitter power (P) by at least 43 + 10 log10(P) dB.
(2) Additional Protection Levels. Notwithstanding the foregoing
paragraph (h)(1) of this section:
(i) For operations in the 1915-1920 MHz band, the power of any
emission above 1930 MHz shall be attenuated below the transmitter power
(P) in watts by at least 70 + 10 log10(P) dB.
(ii) For operations in the 1995-2000 MHz band, the power of any
emission above 2005 MHz shall be attenuated below the transmitter power
(P) in watts by at least 70 + 10 log10(P) dB.
(3) Measurement Procedure.
(i) Compliance with this provision is based on the use of
measurement instrumentation employing a resolution bandwidth of 1
megahertz or greater. However, in the 1 megahertz bands immediately
outside and adjacent to the licensee's frequency block, a resolution
bandwidth of at least one percent of the emission bandwidth of the
fundamental emission of the transmitter may be employed. The emission
bandwidth is defined as the width of the signal between two points, one
below the carrier center frequency and one above the carrier center
frequency, outside of which all emissions are attenuated at least 26 dB
below the transmitter power.
(ii) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the licensee's frequency block
edges, both upper and lower, as the design permits.
(iii) The measurements of emission power can be expressed in peak
or average values, provided they are expressed in the same parameters
as the transmitter power.
* * * * *
0
15. Section 27.55 is amended by revising paragraphs (a)(1) to read as
follows:
Sec. 27.55 Power strength limits.
(a) * * *
(1) 1995-2000, 2110-2155, 2305-2320, 2345-2360 MHz bands: 47
dB[micro]V/m.
* * * * *
0
16. Section 27.57 is amended by revising paragraph (c) to read as
follows:
Sec. 27.57 International coordination.
* * * * *
(c) Operation in the 1710-1755 MHz, 1915-1920 MHz, 1995-2000 MHz
and 2110-2155 MHz bands is subject to international agreements with
Mexico and Canada.
0
17. Add subpart K to part 27 to read as follows:
Subpart K--1915-1920 MHz and 1995-2000 MHz
Licensing and Competitive Bidding Provisions
Sec.
27.1001 1915-1920 MHz and 1995-2000 MHz bands subject to competitive
bidding.
27.1002 Reimbursement obligation of AWS licensees at 1915-1920 MHz.
Reimbursement Obligations of AWS Licensees at 1915-1920 and 1995-2000
MHz
Sec.
27.1021 Reimbursement obligation of AWS licensees at 1915-1920 MHz.
27.1031 Reimbursement obligation of AWS licensees at 1995-2000 MHz.
27.1041 Termination of Cost-Sharing Obligations.
Licensing and Competitive Bidding Provisions
Sec. 27.1001 1915-1920 MHz and 1995-2000 MHz bands subject to
competitive bidding.
Mutually exclusive initial applications for 1915-1920 MHz and 1995-
2000 MHz band licenses are subject to competitive bidding. The general
competitive bidding procedures set forth in 47 CFR part 1, subpart Q
will apply unless otherwise provided in this subpart.
Sec. 27.1002 Designated entities in the 1915-1920 MHz and 1995-2000
MHz bands.
Eligibility for small business provisions:
(a)(1) A small business is an entity that, together with its
affiliates, its controlling interests, the affiliates of its
controlling interests, and the entities with which it has an
attributable material relationship, has average gross revenues not
exceeding $40 million for the preceding three years.
(2) A very small business is an entity that, together with its
affiliates, its controlling interests, the affiliates of its
controlling interests, and the entities with which it has an
attributable material relationship, has average gross revenues not
exceeding $15 million for the preceding three years.
(b) Bidding credits. 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)(iii) of this
chapter. 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)(ii) of this
chapter.
Reimbursement Obligations of AWS Licensees at 1915-1920 and 1995-2000
MHz
Sec. 27.1021 Reimbursement obligation of AWS licensees at 1915-1920
MHz.
AWS licensees of the H Block (1915-1920 MHz paired with 1995-2000
MHz) are collectively responsible for reimbursing UTAM, Inc. a pro rata
share of the expenses that UTAM, Inc. has incurred from relocating and
clearing incumbent Fixed Microwave Service (FS) licensees from the
1910-1930 MHz band. Specifically, within 30 days of grant of its long-
form application, AWS licensees in the 1915-1920 MHz band, which
constitutes 25 percent of the 1910-1930 MHz band, shall, on a pro rata
shared basis as set forth in paragraph (a) in this section reimburse 25
percent of the total relocation costs incurred by UTAM, Inc.
(a) To the extent that H Block licenses awarded in the first
auction for this spectrum cover, collectively, at least forty (40)
percent of the nation's population, the amount owed to UTAM, Inc. by
the winning bidder of each individual H Block license awarded in the
first auction will be determined by dividing the gross winning bid
(``GWB'') for each individual H Block license (i.e., an Economic Area
(EA)) by the sum of the gross winning bids for all H Block licenses
awarded in the first auction, and then multiplying by $12,629,857.
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Except as provided in paragraphs (b) and (c) of this section, an
AWS licensee that obtains a license for a market not awarded in the
first H Block auction will not have a reimbursement obligation to UTAM,
Inc.
(b) The Commission imposes payment obligations on bidders that
withdraw provisionally winning bids during the course of an auction, on
those that default on payments due after an auction closes, and on
those that are disqualified. See 47 CFR 1.2110(f)(2)(i). In the initial
auction, a winning bidder of an EA license that is not awarded a
license for any reason will be deemed to have triggered a reimbursement
obligation to UTAM, Inc. that will be paid to UTAM, Inc. by the
licensee acquiring the EA license at reauction. The amount owed to
UTAM, Inc. by the licensee acquiring the EA license at reauction will
be based on the gross winning bid for the EA license in the initial
auction. Accordingly, an applicant at reauction will know with
certainty the reimbursement obligation it will owe for each EA license
subject to this paragraph (b).
(c) To the extent that H Block licenses awarded in the first
auction for this spectrum cover, collectively, less than forty (40)
percent of the nation's population, then the amount owed to UTAM, Inc.
shall be more equitably dispersed across all EA licenses based on the
relative population of the EA to the population of the United States.
Specifically, the amount that the licensee of an individual H Block
license must reimburse UTAM, Inc. shall be calculated by dividing the
population of the individual BTA by the total U.S. population, and then
multiplying by $12,629,857.
[GRAPHIC] [TIFF OMITTED] TP08JA13.014
(d) For purposes of compliance with this section, licensees should
determine population based on 2000 U.S. Census Data or such other data
or measurements that the Wireless Telecommunications Bureau proposes
and adopts under the notice and comment process for the auction
procedures.
Sec. 27.1031 Reimbursement obligation of AWS licensees at 1995-2000
MHz.
AWS licensees of the H Block (1915-1920 MHz paired with 1995-2000
MHz) are collectively responsible for reimbursing Sprint Nextel, Inc.
or a successor in interest to Sprint Nextel, Inc. (Sprint), a pro rata
share of the eligible expenses that Sprint has incurred from relocating
and clearing Broadcast Auxiliary Service (BAS), Cable Television Relay
Service (CARS), and Local Television Transmission Service (LTTS)
incumbents from the 1990-2025 MHz band. Specifically, within 30 days of
grant of its long-form application, AWS licensees in the 1995-2000 MHz
band, which constitutes one-seventh of the 35 megahertz of spectrum at
1990-2025 MHz, shall, on a pro rata shared basis as set forth below in
this section reimburse one-seventh of the eligible expenses incurred by
Sprint.
(a) To the extent that H Block licenses awarded in the first
auction for this spectrum cover, collectively, at least forty (40)
percent of the nation's population, the amount owed to Sprint by the
winning bidder of each individual H Block license awarded in the first
auction will be determined by dividing the gross winning bid (``GWB'')
for each individual H Block license (i.e., an Economic Area (EA)) by
the sum of the gross winning bids for all H Block licenses awarded in
the first auction, and then multiplying by $94,875,516.
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Except as provided in paragraphs (b) and (c), an AWS licensee that
obtains a license for a market not awarded in the first H Block auction
will not have a reimbursement obligation to Sprint.
(b) The Commission imposes payment obligations on bidders that
withdraw provisionally winning bids during the course of an auction, on
those that default on payments due after an auction closes, and on
those that are disqualified. See 47 CFR 1.2110(f)(2)(i). In the first
auction, a winning bidder of an EA license that is not awarded a
license for any reason will be deemed to have triggered a reimbursement
obligation to Sprint that will be paid to Sprint by the licensee
acquiring the EA license at reauction. The amount owed to Sprint by the
licensee acquiring the EA license at reauction will be based on the
gross winning bid for the EA license in the first auction. Accordingly,
an applicant at reauction will know with certainty the reimbursement
obligation it will owe for each EA license subject to this paragraph
(b).
(c) To the extent that H Block licenses awarded in the first
auction for this spectrum cover, collectively, less than forty (40)
percent of the nation's population, then the amount owed to Sprint
shall be more equitably dispersed across all EA licenses based on the
relative population of the EA to the population of the United States.
Specifically, the amount that the licensee of an individual H Block
license must reimburse Sprint shall be calculated by dividing the
population of the individual EA by the total U.S. population, and then
multiplying by $94,875,516.
[[Page 1188]]
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(d) For purposes of compliance with this section, licensees should
determine population based on 2000 U.S. Census Data or such other data
or measurements that the Wireless Telecommunications Bureau proposes
and adopts under the notice and comment process for the auction
procedures.
Sec. 27.1041 Termination of Cost-Sharing Obligations.
(a) The cost-sharing obligation adopted in this subpart will sunset
ten years after the first H Block license is issued in the band.
(b) An H Block licensee must satisfy in full its payment
obligations under this subpart K within thirty days of the grant of its
long-form application. The failure to timely satisfy a payment
obligation in full prior to the applicable sunset date will not
terminate the debt owed or a party's right to collect the debt.
[FR Doc. 2013-00157 Filed 1-7-13; 8:45 am]
BILLING CODE 6712-01-P