[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Proposed Rules]
[Pages 42263-42266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18987]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 06-150, DA 17-810]


In the Matter of Service Rules for the 698-746, 747-762, and 777-
792 MHz Bands

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
explains the overall rules and policies for the relicensing of 700 MHz 
spectrum that is returned to the Commission's inventory as a result of 
licensees' failure to meet applicable construction requirements, as set 
forth by the Commission in the 700 MHz Second Report and Order (WT 
Docket No. 06-150, FCC 07-132). The document seeks comment on the 
Wireless Telecommunications Bureau's proposed approach for implementing 
the various rules and policies of the relicensing process.

DATES: Interested parties may file comments on or before October 10, 
2017, and reply comments on or before November 6, 2017.

ADDRESSES: You may submit comments, identified by WT Docket No. 06-150, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the Commission's Electronic Comment 
Filing System (ECFS): http://fjallfoss.fcc.gov/ecfs2/. See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Generally 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. Commenters are only required to 
file copies in GN Docket No. 13-111.
     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.
    [cir] 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.
    [cir] 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.
    [cir] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

FOR FURTHER INFORMATON CONTACT: Anna Gentry, [email protected], of 
the Wireless Telecommunications Bureau, Mobility Division, (202) 418-
2887. For additional information concerning the PRA information 
collection requirements contained in this document, contact Cathy 
Williams at (202) 418-2918 or send an email to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document in WT Docket No. 06-150, DA 17-810, released on August 28, 
2017. The complete text of the Public Notice is available for viewing 
via the Commission's ECFS Web site by entering the docket number, WT 
Docket No. 06-150. The complete text of the documents also available 
for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern 
Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on 
Fridays in the FCC Reference Information Center, 445 12th Street SW., 
Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-
488-5563.
    This proceeding shall continue to be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules (47 CFR 1.1200 et seq.). Persons making ex parte presentations 
must file a copy of any written presentation or a memorandum 
summarizing any oral presentation within two business days after the 
presentation (unless a different deadline applicable to the Sunshine 
period applies). Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which 
the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b). 
In proceedings governed by rule 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.

I. Synopsis

    In the 2007 700 MHz Second Report and Order,\1\ the Commission 
adopted rules for relicensing of 700 MHz Lower A, B, and E Block, and 
Upper C Block spectrum that is returned to the Commission's inventory 
as a result of licensees' failure to meet applicable construction 
requirements. The Commission set forth the overall rules and policies 
for the relicensing process and delegated authority to the Wireless 
Telecommunications Bureau (Bureau) to implement those rules and 
policies. To the extent the 700 MHz Second Report and Order and other 
Commission rules set forth elements of the relicensing process, the 
document cites to those rules, and otherwise seeks comment on

[[Page 42264]]

the Bureau's proposed approach to the remaining elements of the 
process, including the respective costs and benefits of the various 
proposals.
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    \1\ Service Rules for 698-746, 747-762, and 777-792 MHz Bands et 
al., Second Report and Order, 22 FCC Rcd 15289 (2007) (700 MHz 
Second Report and Order).
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A. Required Filing for Keep What You Serve

    Pursuant to the 700 MHz Second Report and Order, licensees that 
fail to meet the construction requirement and are subject to the Keep 
What You Serve (KWYS) KWYS rules will be required to file an electronic 
coverage map in order to demonstrate the geographic portion of the 
licensed area the licensee will retain, and the geographic area that 
will be returned to the Commission for reassignment. Licensees 
admitting failure must include the additional required filing for KWYS 
with their construction notification at the end-of-term construction 
deadline. If a licensee claims to have met the construction benchmark, 
but the Bureau deems the licensee to have failed after review of the 
construction notification, the licensee will be asked to amend its 
initial construction notification filing to include the additional 
required filing for KWYS.
    In order to implement the KWYS rules, the document proposes and 
seeks comment on a process whereby licensees would demonstrate the 
``served'' area of the license by filing a shapefile showing a smooth 
enclosed 40 dB[micro]V/m field strength contour (Smooth Contour) of 
existing facilities as of the end-of-term deadline. The portion of the 
license market covered by the Smooth Contour would be deemed ``served'' 
for the purposes of the KWYS rule and become the reduced licensed area 
that the licensee ``keeps.'' Recognizing that some licensees might 
provide service at significantly lower field strength such that the 40 
dB[micro]V/m Smooth Contour would result in a reduced licensed area 
that is substantially smaller than the licensee's actual service area, 
the document also proposes that, if the 40 dB[micro]V/m Smooth Contour 
would result in a reduced licensed area that is at least 25 percent 
smaller than the licensee's actual service area, the licensee could 
demonstrate the service area using a lower dB[micro]V/m field strength 
smooth contour (Alternative Smooth Contour). Under this proposed 
approach, in order to be acceptable for filing, a submission using an 
Alternative Smooth Contour would be required to demonstrate that: (1) 
The licensee is operating a viable service at the lower field strength; 
and (2) the service area using the lower dB[micro]V/m field strength 
Alternative Smooth Contour is at least 25 percent larger than it would 
be using the 40 dB[micro]V/m field strength Smooth Contour. The Bureau 
would update the license in the Commission's Universal Licensing System 
(ULS) using either the Smooth Contour or Alternative Smooth Contour 
shapefile to reflect the reduced license boundary. The remaining 
portion of the original license market would be deemed unserved area 
and would return to the Commission's inventory for relicensing.
    The document seeks comment on this proposed methodology for 
determining licensees' service area and what, if any, alternatives to 
this approach might achieve the Commission's goals of accurately 
reflecting licensees' service areas and making spectrum available for 
relicensing in an efficient manner.

B. Identifying Unserved Area

    Pursuant to the 700 MHz Second Report and Order, information about 
the available unserved areas will be publicly available. Under the 
approach proposed in this document, the Bureau would use the Smooth 
Contour or Alternative Smooth Contour shapefiles submitted by failing 
licensees to determine the unserved areas of each market. The Bureau 
would compile these unserved portions together as areas that would be 
available for relicensing and would provide instructions on how to 
access that information by public notice. The public notice announcing 
the unserved areas available for relicensing would also provide further 
instructions and specific dates for the commencement of the relicensing 
process. In setting these dates, the Bureau intends to provide 
potential applicants with at least 60 days prior to the commencement of 
relicensing to enable them to make necessary inquiries about available 
area, e.g. site leases, existing infrastructure, neighboring 
operations, and network and backhaul needs.

C. Phased Relicensing Process

    The document also describes the two-phased application process for 
the relicensing of unserved areas, as set forth in Section 27.14 of the 
Commission's rules. The document explains that applications for 
available unserved areas will be filed via ULS and the applicant will 
select the available unserved area that they wish to serve by filing a 
shapefile covering that area.
    In order to implement the relicensing process, this document 
proposes to provide applicants with access to a publicly available map 
displaying the areas available for relicensing, from which they could 
determine the areas they are interested in licensing. In the interest 
of administrative clarity and functionality, this document proposes 
limiting a single application to include one shapefile of a contiguous 
shape, or, if non-contiguous, requiring that the shapes be within a 
single market boundary. If an applicant files for non-contiguous shapes 
in a single application, grant of the application would result in a 
single license and a single buildout requirement would be applied to 
all shapes as a whole. Consequently, failure to meet the buildout 
requirement with respect to one non-contiguous shape would result in 
application of the penalty for failure to all shapes as a whole. This 
document seeks comment on this proposed treatment of applications for 
available unserved areas and what, if any, further restrictions or 
methods might be necessary to ensure efficient processing and review of 
applications filed during the relicensing process.

D. Phase 1 of Relicensing

    As set forth in the Commission's rules, relicensing will begin with 
a 30-day Phase 1 filing window. Pursuant to section 27.14, the original 
licensee of available unserved areas, whose authorization to serve that 
area terminated due to failure to meet the end-of-term construction 
benchmark, is barred during Phase 1 from applying to relicense that 
area. This Phase 1 bar is specific to each unserved area, and therefore 
an applicant that is barred from one unserved area during Phase 1 is 
not barred from applying for other available areas for which it was not 
the original licensee.
    In order to implement the Phase 1 bar, this document proposes to 
apply the bar to any applicant that has any interest or ownership in, 
or any control of, the original licensee and to any applicant in which 
the original licensee has any interest, ownership, or control. This 
document seeks comment on requiring applicants to certify in the 
application that: (1) The applicant is not the original licensee of the 
unserved area; (2) the applicant does not have any interest in or own 
or control any part of the original licensee of the unserved area; and 
(3) the original licensee of the unserved area does not have any 
interest in or own or control any part of the applicant. This document 
seeks comment on this approach and potential alternatives for applying 
the bar, including application of the Commission's pro forma standard 
for determining ownership, which looks to both de jure and de facto 
control of the licensee.
    Pursuant to the Commission's Part 1 rules, at the end of the 30-day 
Phase 1 filing window, the Bureau will issue a public notice listing 
applications found

[[Page 42265]]

acceptable for filing during Phase 1. The public notice will identify 
which acceptable applications, if any, are mutually exclusive with each 
other. All applications received during the Phase 1 filing window for a 
particular available unserved area are treated as contemporaneous for 
the purposes of mutual exclusivity. Pursuant to section 27.14(j)(1), 
applications will be deemed mutually exclusive if they propose areas 
overlapping with other applications. Consistent with the 700 MHz Second 
Report and Order, no further mutually exclusive applications may be 
filed after the 30-day filing window has ended, but licensees and third 
parties may file petitions to deny any pending applications within 30 
days of the release of the public notice listing Phase 1 applications 
found acceptable for filing. This document explains that, subject to 
the Greenmail Rule, applicants may resolve mutual exclusivity by 
withdrawing or filing a minor amendment to one or both of the mutually 
exclusive applications, and describes the types of amendments that 
qualify as a minor amendment, rather than a major amendment, which 
requires a new public notice period.
    In order to implement these policies concerning mutually exclusive 
applications, this document proposes that applicants would be permitted 
to resolve their mutually exclusive applications or attempt to reach a 
settlement during the public notice period that follows the Phase 1 
filing window. Similar to the Commission's approach in other licensing 
and competitive bidding contexts, this document proposes that the 
definition of mutually exclusive applications would include ``daisy 
chains'' of mutual exclusivity, which occur when two or more 
applications contain proposed areas that do not directly overlap, but 
are linked together into a chain by the overlapping proposal(s) of 
other(s).

E. Phase 2 of Relicensing

    As set forth in the rules establishing the relicensing process, 
during Phase 2 interested applicants, including those that were barred 
during Phase 1, may file applications for available unserved areas that 
were not licensed during Phase 1 or for which there are no pending 
applications.
    In order to implement the Phase 2 process, this document proposes 
and seeks comment on a process whereby the Bureau would update the 
publicly available relicensing map following Phase 1 to reflect pending 
applications, licenses that were issued, and area that remains 
available for relicensing. As with Phase 1, this document proposes that 
the definition of mutual exclusivity for Phase 2 applications would 
include applications that, though not mutually exclusive of the first-
filed application, are mutually exclusive of another application that 
overlaps the first-filed application--i.e., a ``daisy chain'' as 
described above. This document proposes that the public notice for the 
first-filed application would determine the applicable filing period 
for all subsequent mutually exclusive or ``daisy chain'' applications. 
Following a Phase 2 application's 30-day public notice, this document 
proposes and seeks comment on a process whereby, if the Bureau 
determines there are existing applications that are mutually exclusive 
of the initial application, it would notify the parties of the 
conflicting applications and provide 60 days to resolve the mutual 
exclusivity. Any mutually exclusive applications that are not resolved 
by the end of the 60-day period would be subject to auction. This 
document seeks comment on this proposed approach to mutual exclusivity 
during Phase 2.

F. Relicensed Area Construction Requirement and Showing

    As set forth in section 27.14(j)(3), licensees of 700 MHz licenses 
acquired through the relicensing process will have one year from the 
date the new license is issued to complete construction, provide signal 
coverage, and offer service over 100 percent of the geographic area of 
the new license area. Pursuant to the Commission's rules, if the 
licensee fails to meet this construction requirement, its license will 
automatically terminate without Commission action and it will not be 
eligible to apply to provide service to this area at any future date.
    In order to implement the Commission's goals of facilitating rapid 
deployment of service on relicensed spectrum and to prevent potential 
gaming of the relicensing process, this document proposes to treat any 
modification, cancellation, or assignment of a license as failure to 
provide signal coverage and offer service to the entire relicensed 
area, such that the penalty for failure would apply. Specifically, 
under the proposal, licensees would not be permitted to modify the 
licensed area prior to meeting the one-year construction benchmark in 
order to reduce the area they must cover. Cancellation of the license 
prior to meeting the one-year construction benchmark would also 
constitute failure, and the former licensee would not be eligible to 
apply to serve any portion of this area at any future date. Finally, 
licensees would be permitted to file applications to assign licenses 
acquired through relicensing (including requests to partition and 
disaggregate) only after they have demonstrated that they have met the 
construction benchmark. This document seeks comment on this approach to 
the construction requirement and what, if any, further restrictions 
might be necessary to promote the Commission's goals in establishing 
the requirements.
    In order to implement the construction requirement for relicensed 
area, this document proposes that, at the one-year construction 
deadline, licensees would be required to demonstrate that they provide 
signal coverage and offer service over 100 percent of the geographic 
area by filing either a Smooth Contour or an Alternative Smooth 
Contour, consistent with the proposed required filings for KWYS. This 
document seek comment on what, if any, alternative filings might be 
appropriate methods for licensees to demonstrate that they satisfy the 
construction requirement.
    Given the proposed requirements and penalties for failing to meet 
the construction requirement, this document notes that it is 
particularly important that potential participants in the relicensing 
process only apply for portions of available unserved areas if they, 
through due diligence, have determined they can provide signal coverage 
and offer service over 100 percent of the area within one year from the 
date of license issuance. Under approach proposed in this document, it 
would be particularly important that potential licensees conduct due 
diligence prior to applying for available unserved areas during the 
relicensing process and ensure the shapefile used in their application 
is an accurate reflection of the Smooth Contour or Alternative Smooth 
Contour they would be required to file at the one-year construction 
deadline. Additionally, the Bureau recommends that potential licensees 
review the technical narratives and specifications of construction 
notifications that the Bureau has previously accepted for the 700 MHz 
band.

II. Procedural Matters

Initial Regulatory Flexibility Act Analysis

    As required by the Regulatory Flexibility Act of 1980 (RFA), the 
Commission prepared an Initial Regulatory Flexibility Analysis (IRFA) 
in connection with the 700 MHz Further

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Notice \2\ and a Final Regulatory Flexibility Analysis (FRFA) in 
connection with the 700 MHz Second Report and Order.\3\ While no 
commenter directly responded to the IRFA, the FRFA addressed concerns 
about the impact on small business of the KWYS rules. The IRFA and FRFA 
set forth the need for and objectives of the Commission's rules for the 
KWYS rules; the legal basis for those rules, a description and estimate 
of the number of small entities to which the rules apply; a description 
of projected reporting, recordkeeping, and other compliance 
requirements for small entities; steps taken to minimize the 
significant economic impact on small entities and significant 
alternatives considered; and a statement that there are no federal 
rules that may duplicate, overlap, or conflict with the rules. The 
proposals in this document do not change any of those descriptions.
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    \2\ Service Rules for 698-746, 747-762, and 777-792 MHz Bands et 
al., Report and Order and Further Notice of Proposed Rulemaking, 22 
FCC Rcd 8064, 8212 (2007) (700 MHz Further Notice).
    \3\ 700 MHz Second Report and Order, 22 FCC Rcd at 15542.
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    This document does, however, detail proposed procedures for 
implementing those rules. Therefore, this document seeks comment on how 
the proposals in this document could affect either the IRFA or the 
FRFA. Such comments must be filed in accordance with the same filing 
deadlines for responses to this document and have a separate and 
distinct heading designating them as responses to the IRFA and FRFA.

Initial Paperwork Reduction Act Analysis

    The document contains proposed new information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and OMB to comment 
on the information collection requirements contained in this document, 
as required by PRA. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission seeks specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

Federal Communications Commission.
Nese Guendelsberger,
Senior Deputy Bureau Chief, Wireless Telecommunications Bureau.
[FR Doc. 2017-18987 Filed 9-6-17; 8:45 am]
 BILLING CODE 6712-01-P