[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Rules and Regulations]
[Pages 76469-76480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23506]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 90

[WP Docket No. 07-100; FCC 20-137; FRS 17146]


4.9 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In March 2018, the Federal Communications Commission 
(Commission) released a Sixth Further Notice of Proposed Rulemaking 
(Sixth FNPRM) seeking comment on ways to stimulate expanded use of and 
investment in the 4.9 GHz (4940-4990 MHz) band, including allowing 
licensees the flexibility to engage in spectrum leasing and broadening 
existing eligibility requirements. On September 8, 2020, the Public 
Safety and Homeland Security Bureau and the Wireless Telecommunications 
Bureau issued a Public Notice freezing the 4.9 GHz band to stabilize it 
while the Commission considered changes to the 4.9 GHz band rules 
(Freeze Public Notice). In this document, the Commission adopts rules 
permitting one statewide 4.9 GHz band licensee per state, the State 
Lessor, to lease some or all of its spectrum rights to third parties--
including commercial and public safety users--in those states that the 
Commission has not identified as a diverter of 911 fees. The Report and 
Order does not limit or modify the rights of any incumbent public 
safety licensees. The new rules also eliminate the requirement that 
leased spectrum must be used to support public safety but requires 
lessees to adhere to the informal coordination requirements applicable 
to the band.

DATES: Effective December 30, 2020, except for Sec.  90.1217, which is 
delayed. We will publish a document in the Federal Register announcing 
the effective date.

ADDRESSES: Federal Communications Commission, 45 L St. NE SW, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Jonathan Markman of the Wireless 
Telecommunications Bureau, Mobility Division, at (202) 418-7090 or 
[email protected]. For information regarding the PRA information 
collection requirements contained in this PRA, contact Cathy Williams, 
Office of Managing Director, at (202) 418-2918 or 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in WP Docket No. 07-100, FCC 20-137 adopted September 30, 
2020 and released October 02, 2020. The full text of the Report and 
Order, including all Appendices, is available by downloading the text 
from the Commission's website at https://www.fcc.gov/document/fcc-expands-access-and-investment-49-ghz-band-0. Alternative formats are 
available for people with disabilities (braille, large print, 
electronic files, audio format), by sending an email to [email protected] 
or calling the Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).
    The Commission will send a copy of this Report in a report to be 
sent to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice and comment 
rulemakings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' Accordingly, the Commission has prepared a Final 
Regulatory Flexibility Analysis (FRFA) concerning the possible impact 
of the rule changes contained in this Report and Order on small 
entities. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Sixth Further Notice of Proposed Rulemaking (Sixth 
FNPRM) released in March 2018 in this proceeding (83 FR 20011, May 7, 
2018). The Commission sought written public comment on the proposals in 
the Sixth FNPRM, including comments on the IRFA. No comments were filed 
addressing the IRFA. This present Final Regulatory Flexibility Analysis 
(FRFA) conforms to the RFA.

Paperwork Reduction Act

    The requirements in Sec.  90.1217 constitute new or modified 
collections subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. They will be submitted to the Office of Management 
and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and

[[Page 76470]]

other Federal agencies are invited to comment on the new or modified 
information collection requirements contained in this proceeding. In 
addition, the Commission notes that, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission previously sought, but did not receive, 
specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees. The Commission describes impacts that might affect 
small businesses, which includes more businesses with fewer than 25 
employees, in the Final Regulatory Flexibility Analysis.

Congressional Review Act

    The Commission has determined and the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
concurs, that this rule is non-major under the Congressional Review 
Act, 5 U.S.C. 804(2). The Commission will send a copy of the Sixth 
Report and Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

Synopsis

I. Introduction

    1. Nearly two decades ago, the Commission designated 50 megahertz 
of spectrum at 4.9 GHz (4940-4990 MHz) for use in support of public 
safety. Over the past 18 years, the Commission, working with public 
safety entities and associations, has endeavored to increase investment 
in, and maximize use of, the band. These efforts notwithstanding, the 
4.9 GHz band remains underused outside of major metropolitan areas, 
with stakeholders citing high equipment costs and limited availability 
of broadband equipment, among several barriers to its use. In this 
document, we begin to break down these barriers and expand access to 
the band by providing states the opportunity to lease 4.9 GHz band 
spectrum to commercial entities, critical infrastructure industry, 
including electric utilities, and other stakeholders.
    2. Under our new framework, statewide incumbent licensees will be 
empowered with the authority to make decisions on how best to maximize 
the value and use of their spectrum based on market forces. States can 
continue to use the spectrum for their own public safety network 
operations; they can enter into one or more commercial arrangements for 
commercial deployment of public-safety communications services; they 
can lease the spectrum to a commercial service provider for deployment 
of mobile or fixed wireless internet service, private land mobile radio 
service or critical infrastructure connectivity; or they can pursue a 
combination of any of these scenarios (or any other arrangement that is 
allowed for pursuant to the service rules for the band and our 
Secondary Markets rules (69 FR 77521, Dec. 27, 2004)). The rule changes 
we adopt here will reverse the effects of the 4.9 GHz band's antiquated 
licensing framework that have led to its underuse.
    3. Prior to the amendments in this document, access to the 4.9 GHz 
band was restricted to certain entities and use of the spectrum was 
limited to public safety purposes. Licensees also operate pursuant to a 
complicated sharing framework; there is no exclusive use of the band. 
This Sixth Report and Order allows states to enter into lease 
agreements voluntarily with other users (whether public safety or non-
public safety) for access to the 4.9 GHz band in their territory. We 
place no restriction on the type of entity to which a state can lease 
or the type of services that the lessee can provide. This approach, 
especially when combined with the potential changes to licensing and 
coordination contemplated in the accompanying Seventh FNPRM, published 
elsewhere in this issue of the Federal Register, seeks to empower 
states to determine the best use of the 4.9 GHz band for their 
citizens, by enabling them to balance the needs of public safety and 
the benefits that can come from non-public safety use. We anticipate 
that this framework will facilitate more robust investment in this band 
across the entire country and drive down equipment costs, to the 
benefit of public safety and non-public safety entities seeking to 
deploy.
    4. In the accompanying Seventh FNPRM, we propose a new state-based 
licensing regime for public safety operations in the 4.9 GHz band. We 
seek comment on a centralized structure of state oversight and 
coordination of public safety operations in the band, to work alongside 
the leasing regime we adopt in this document. We also seek comment on 
ways to maximize opportunities for leasing and otherwise encourage more 
robust use of this band.

II. Background

    5. Under our rules, to be eligible for a 4.9 GHz license, an entity 
must provide public safety services as defined under our part 90 rules. 
This includes state and local government entities, as well as 
nongovernmental organizations (NGOs) that operate their systems solely 
to transmit communications essential to the provision of services 
having the sole or principal purpose of protecting the safety of life, 
health or property. Licensees are also permitted to enter into sharing 
agreements with ineligible entities for use of this spectrum, but 
operations must be in support of public safety. 4.9 GHz licenses 
authorize operation on any channel over the entire 50 megahertz of the 
band and are issued for the geographic area encompassing the legal 
jurisdiction of the licensee. A key component of the 4.9 GHz band is 
that licenses are granted for shared use only and provide no exclusive 
rights. As a result, licenses often overlap: There may be one or more 
geographic area license covering a given location and licensed on the 
same spectrum, as well as fixed-site licenses. For example, a common 
scenario might involve a statewide license held by the state police, a 
county-wide license held by the sheriff's department, and fixed-site 
licenses operating in the same area by various public safety entities. 
Our 4.9 GHz rules do not specify a formal coordination requirement. 
Rather, licensees informally cooperate with one another to ensure that 
their operations do not cause interference with one another, and to 
resolve interference if it occurs. Public safety entities can also be 
licensed for fixed point-to-point and point-to-multipoint operations 
within their jurisdictions.
    6. Nearly all licenses in this band contain a condition, consistent 
with our rules, specifying that operation is permitted only within the 
jurisdiction of the licensee, or that of the entity supporting the 
application of an NGO, regardless of the area specified on the license 
(which, due to legacy Universal Licensing System limitations, in some 
cases is depicted as larger than the relevant jurisdiction). A licensee 
has the authority to operate base stations and mobile units (including 
portables and handheld units) and/or temporary (one year or less) fixed 
stations anywhere within its authorized area.
    7. Licensees are also permitted to operate base stations with 
mobile units and temporary fixed stations outside their authorized area 
with the permission of the other jurisdiction in which they will 
operate. Permanent fixed point-to-point and point-to-multipoint 
stations must be licensed individually on a site-by-site basis. 
Permanent fixed stations that connect base and mobile stations that are 
used to deliver broadband, or that are part of a public safety network 
using spectrum designated for broadband use, are

[[Page 76471]]

accorded ``primary'' status under the rules.
    8. There are 3,578 licenses currently issued in the band. This 
includes 142 statewide area licenses, 1,160 countywide area licenses, 
and 2,276 other licenses, either for geographic area licenses or other 
types (such as for a group of counties, a city, or parts of one or more 
cities) or for fixed sites. Most of the United States and U.S. 
territories are covered by at least one statewide license. In some 
states, multiple state entities hold statewide licenses. Operations, 
particularly fixed communications and connectivity, are used to 
facilitate video streaming, communications system backhaul, and data 
connections for advanced devices. Emerging uses of the band include 
robotics and airborne operations, as well as Internet of Things uses.
    9. In March 2018, the Commission released the Sixth FNPRM, in which 
it sought comment on ways to stimulate expanded use of, and investment 
in, the 4.9 GHz band. The Commission noted that ``[a]lthough nearly 
90,000 public safety entities are eligible under our rules to obtain 
licenses in the band, there were only 2,442 licenses in use in 2012 and 
only 3,174 licenses in use nearly six years later in 2018.'' With no 
more than 3.5% of potential licensees using the band, the Commission 
remained concerned that, as originally stated in 2012, the band has 
``fallen short of its potential.'' Over two years later, the 4.9 GHz 
band continues to be underused. There are currently only 3,578 licenses 
issued, and in many instances the same licensee holds multiple licenses 
in its jurisdiction based on the 4.9 GHz licensing structure requiring 
geographic area licensees to obtain individual licenses for permanent 
fixed sites. Accordingly, there are currently only 2,094 individual 
licensees, whereas the number of eligible public safety entities as of 
the 2017 census is 90,075. Various commenters agree that the 4.9 GHz 
band remains underused. As one commenter noted, the lack of widespread 
use of the band ``stands in stark contrast to other spectrum bands in 
which usage is increasing exponentially and the Commission is working 
at breakneck speed to provide access to support existing broadband 
services and provide opportunities for new services and applications.''
    10. In the Sixth FNPRM, the Commission sought comment on a number 
of proposed rule changes and several options to increase use of this 
spectrum. These included allowing licensees additional flexibility to 
engage in spectrum leasing, as well as broadening of eligibility 
requirements for licensees, changes to technical rules governing the 
band, and proposals from NPSTC and APCO seeking revisions to the band's 
coordination requirements and band plan. The Commission received 
comments from across several industries, which broadly support 
increased use of the band while also preserving public safety access.
    11. On September 8, 2020, the Public Safety and Homeland Security 
Bureau and the Wireless Telecommunications Bureau (the Bureaus) issued 
a freeze of the 4.9 GHz band to stabilize the band while we consider 
changes to the rules as part of this proceeding (Freeze Public Notice) 
(85 FR 63553, Oct. 8, 2020). Pursuant to the freeze, we will not accept 
applications for new or modified licenses, either geographic area 
licenses or individual fixed-site licenses.

III. Sixth Report and Order

    12. In the Sixth FNPRM, the Commission anticipated that ``the 
benefits of allowing more efficient spectrum use through leasing can be 
realized at no cost to public safety.'' This Commission has 
consistently worked to ensure the efficient allocation and use of 
spectrum, especially critical mid-band spectrum. In this Sixth Report 
and Order, we revise a legacy framework and put the 4.9 GHz band, which 
has been underused for nearly 20 years, on a market-driven path. Our 
approach will allow public safety incumbents to retain access to the 
band while also providing incentives for more efficient use by 
empowering states to lease spectrum rights to commercial, critical 
infrastructure, and other users. The rules we adopt in this document 
give public safety licensees the agency to execute leasing arrangements 
when appropriate and beneficial to their citizens without requiring 
modification or cessation of current public safety operations in the 
band. We find that allowing state-based leasing under the framework 
adopted in this document serves the public interest.

A. Public Interest Benefits of Allowing 4.9 GHz Licensees To Lease 
Spectrum

    13. We find that allowing leased access to the shared 4.9 GHz band 
for non-public safety operations will increase the efficient use of 
this spectrum and serve the public interest. We will permit one 
statewide 4.9 GHz band licensee in each state to lease some or all of 
its spectrum rights to third parties and, when leased, we eliminate the 
requirement that 4.9 GHz spectrum must be used to support public 
safety. This light-touch approach will allow each state the flexibility 
to negotiate mutually agreeable arrangements with third party lessees 
where it makes sense to do so, which we anticipate will increase use of 
and investment in the band. This approach also protects against harmful 
interference by leveraging the existing informal coordination process 
in the 4.9 GHz band and ensuring that leasing will be coordinated by a 
single state entity that is able to work with county and local public 
safety entities, as well as lessees, to avoid harmful interference.
    14. Commenters support varying ways of allowing non-public safety 
access to the band. Commenters representing CII indicate that this 
spectrum is well-suited for complex operations, including smart grid 
applications and other communications networks upon which utilities and 
other CII entities rely. Providers of fixed wireless broadband service 
similarly argue that the spectrum holds promise for their operations, 
including point-to-multipoint connections. Equipment manufacturers and 
spectrum consultants also support non-public safety use of the band. 
Some parties contend that spectrum sharing can be achieved using 
dynamic access systems, similar to those used in the TV white spaces, 
Citizens Broadband Radio Service, or for unlicensed operations in the 6 
GHz band (5950-7150 MHz). Commenters representing 4.9 GHz public safety 
users urge the Commission to ensure that current and future public 
safety operations have continued access to this band.
    15. In the nearly two decades since, the Commission adopted 
restrictive leasing rules for public safety eligibles, the utility of 
this spectrum for flexible use has increased dramatically, and the 
public safety community still has not made full use of the entire band. 
In addition, some countries have considered, or are considering, 
allocating this band for 5G; successful international harmonization 
efforts could provide further advantages in the availability and price 
of equipment, thus potentially increasing its utility for flexible use. 
Given these developments, the public interest would be served by 
adopting a more flexible approach that permits leasing of the spectrum 
to non-public safety entities. We conclude, as suggested in the Sixth 
FNPRM, that ``the benefits of allowing more efficient spectrum use 
through leasing can be realized at no cost to public safety.'' We agree 
with commenters that allowing a ``secondary market for spectrum in this 
band . . . [will] augment the Commission's efforts to intensify use of 
the band'' and ``provide for creativity in use cases.''

[[Page 76472]]

    16. We determine that allowing leasing of shared 4.9 GHz spectrum 
by a single state government entity per state best serves the public 
interest by encouraging greater use of the band and allowing each state 
to determine the correct balance between public safety and non-public 
safety access, thereby avoiding disruptions to public safety 
operations. We expect that this action ultimately will decrease 
deployment barriers and encourage greater public safety use of the 
band, alongside non-public safety uses, by driving down the price of 
equipment and facilitating innovative cost-sharing arrangements between 
public safety licensees and non-public safety lessees. The potential 
revenue streams from leasing may also increase the ability of states to 
invest in equipment for this band. While we seek to maximize leasing 
opportunities, we find that the unique nature of this band and the 
realities of a shared spectrum environment necessitate more centralized 
control of non-public safety spectrum access. We believe that allowing 
leasing through a single statewide entity in each state provides the 
flexibility to determine the most appropriate use of its spectrum 
rights to meet the state's communications needs, while ensuring that 
access to this shared band is controlled and responsibly managed. This 
approach both promotes more efficient spectrum use and encourages 
greater spectrum access.
    17. Some commenters raise concerns about spectrum leasing, 
including general concerns about Commission action forcing public 
safety to share the 4.9 GHz band or transferring spectrum and 
decreasing the availability of public safety spectrum, leasing to non-
public-safety entities, and more specific concerns about states leasing 
at the expense of local public safety interests, inadequate 
interference protections for public safety, the relatively limited 
number of public safety licensees, and therefore potential lessors, in 
the band. These commenters point to the alleged complexity and 
logistical concerns involved in devising a spectrum leasing system in 
the 4.9 GHz band. Some commenters also suggest that public safety 
entities might engage in spectrum warehousing and ``arbitrage,'' 
whereby they would obtain or use their spectrum rights (received at no 
cost) to obtain leasing revenues.
    18. We find that these concerns do not outweigh the public interest 
benefits of permitting leasing pursuant to the framework we adopt in 
this document. Although there are relatively few licensees in this band 
as compared to the overall number of public safety entities eligible to 
obtain a license, nearly all states have at least one statewide 
license, enabling leasing of nearly all available spectrum. And while a 
spectrum leasing framework involving shared spectrum may raise some 
complexities, so does every other proposed path to increase use of this 
band, and we believe that the framework we adopt in this document 
empowers states to find ways to enable public safety and non-public 
safety use of the band as best suits their particular needs. We 
emphasize that leasing is voluntary and allows state governments the 
flexibility to determine the appropriate use of this band in their 
respective jurisdictions, which may include new partnerships that could 
expand public safety access to the band. We expect this new flexibility 
will lead to new uses of 4.9 GHz spectrum and lower equipment costs for 
public safety. Also, the Commission is in no way redesignating or 
transferring 4.9 GHz spectrum for commercial use or requiring public 
safety to relinquish spectrum, thereby protecting existing public 
safety operations and investments. We anticipate that allowing non-
public safety access through state-level leasing will also ensure 
continued cooperation amongst stakeholders, as public safety licensees 
today already are accustomed to coordinating shared spectrum use in 
their jurisdictions. Further, as the Commission noted in the Sixth 
FNPRM, statutory concerns regarding commercial use of public safety 
spectrum do not apply to the 4.9 GHz band, and no commenter raised 
statutory concerns regarding spectrum leasing proposed in the Sixth 
FNPRM.
    19. In the original Secondary Markets proceeding, the Commission 
considered and rejected spectrum warehousing concerns as related to 
public safety entities, noting that leasing of unused spectrum in fact 
diminishes the risk of spectrum warehousing. We find that the current 
freeze on applications for new or modified licenses should discourage 
speculative behavior, and our framework, which only allows leasing by a 
single state entity per state, will also reduce incentives to hold or 
obtain licenses for purposes other than active deployment. Further, the 
new licensing and coordination/management regime proposed in the 
accompanying Seventh FNPRM would further streamline the licensing of 
this band and avoid incentives for licensees to engage in speculative 
behavior.

B. Leasing Opportunities for States

1. Spectrum Leasing by States
    20. Under the framework we adopt in this document, one entity in 
each state (the State Lessor) will have the opportunity to lease 
voluntarily some or all of its 4.9 GHz band spectrum rights to third 
parties for fixed or mobile use, including for non-public safety 
operations. Leasing by other 4.9 GHz band licensees, including by state 
entities other than the State Lessor, county or local entities, or 
nongovernmental organizations that operate in support of public safety, 
will not be permitted. The State Lessor and lessee(s) will have the 
flexibility to structure their lease arrangements, within the 
boundaries of our Secondary Markets rules, to protect ongoing and 
future public safety operations while allowing for more flexible use of 
the band. We recognize that State Lessors and lessees are best 
positioned to negotiate appropriate leasing arrangements to meet their 
operational needs, and the needs of their states, and we impose minimal 
restrictions on those agreements.
a. Allowing Leasing by State Lessors
    21. We amend part 90, subpart Y, of our rules to permit the 
statewide licensee selected as the State Lessor to voluntarily lease 
4.9 GHz band spectrum rights under our part 1 leasing rules to any 
entity that is otherwise eligible to be a spectrum lessee for fixed or 
mobile use, including to commercial entities and others with non-public 
safety operations, thus opening the band to flexible new uses. The 
State Lessor is also free to lease to public safety entities. Some 
commenters urge the Commission to provide for continued exclusive 
public safety community use of 4.9 GHz spectrum to be managed through 
the First Responders Network Authority (FirstNet); wireless providers 
other than AT&T (which operates FirstNet) urge the Commission to reject 
such an approach. We decline to assign the 4.9 GHz band to FirstNet--
which would deprive states (as well as public safety entities within 
that state) any choice in how the band is used. We find, however, that 
the leasing framework we adopt in this document is not inconsistent 
with 4.9 GHz spectrum being used by FirstNet as a lessee; a State 
Lessor has the flexibility to enter into a variety of leasing 
arrangements, including leasing to commercial entities that have the 
option of providing services to public safety or non-public safety 
entities. As discussed below, the State Lessor also will no longer be 
subject to the public safety use

[[Page 76473]]

restriction contained in our rules. Through this action, the State 
Lessor will be permitted to lease spectrum rights in all, or any 
portion, of that state. It may divide these rights on a geographic, 
spectral, or temporal basis, and it may also lease spectrum rights 
associated with its permanent fixed sites, including those with primary 
status under our rules.
    22. State Lessors may enter into agreements with lessees to share 
equipment or other deployment costs provided that they comply with all 
relevant license provisions. We encourage parties to also consider 
alternative coordination methods to prevent harmful interference 
between lessees and public safety licensees that allow for robust 
shared use of the band. For example, parties might consider spectrum 
leases that rely on dynamic sharing mechanisms, which permit 
operational access based on automated databases that identify protected 
operations. In the Seventh FNPRM, we seek comment on ways the 
Commission can encourage and facilitate this type of sharing.
b. Leasing Limited to States the Do Not Divert 911 Fees at This Time
    23. The Commission originally designated the 4.9 GHz band for 
public safety use to ``ensure that agencies involved in the protection 
of life and property possess the communications resources needed to 
successfully carry out their mission.'' As the history of this 
proceeding well demonstrates, access to spectrum is not the sole 
determinant of whether public safety entities can obtain necessary 
communications services. Another issue that has challenged public 
safety entities is 911 fee diversion. The Commission is required to 
provide an annual report to Congress on state 911 fee collection and 
use that identifies which states have improperly diverted 911 fees. 
While identifying states that divert 911 fees in these reports has 
arguably helped discourage the practice, this step alone has failed to 
eliminate it. In the recently adopted Fee Diversion NOI, we found that 
between 2012 and 2018, American states and jurisdictions have diverted 
over $1.275 billion in fees collected for 911 and Enhanced 911 services 
to non-911 purposes. As noted in the Fee Diversion NOI, ``[t]his 
diversion of funding directly undermines the public safety 
communications system.'' The Commission seeks specific comment in the 
Fee Diversion NOI on ``regulatory steps the Commission could take to 
discourage fee diversion, such as . . . conditioning state and local 
eligibility for FCC licenses, programs, or other benefits on the 
absence of fee diversion.''
    24. In this document, we expand access to the 4.9 GHz band by 
affording to certain eligible states the benefit of leasing spectrum 
rights, which we anticipate could provide substantial additional state 
revenues. However, we find it in the public interest to only extend 
this benefit to states that use 911 fees collected from consumers for 
their intended purpose at this time. Specifically, we will only permit 
states that are not identified in the Commission's December 2019 911 
Fee Report as diverting 911 fees for non-911 purposes to lease spectrum 
rights to non-public safety or public safety entities. We take this 
action, in conjunction with our more in depth consideration of this 
issue in the Fee Diversion NOI, as an affirmative step toward 
addressing this long standing problem and in recognition that states 
that have a history of appropriately using 911 fees are more likely to 
respect the rights of public safety incumbents in the 4.9 GHz band. We 
defer consideration to the Seventh FNPRM on whether to extend the 4.9 
GHz band leasing framework to states that divert 911 fees. A state that 
either believes it was incorrectly identified in the 2019 Fee Report as 
diverting fees, or that has taken subsequent remedial action, may 
petition the Public Safety and Homeland Security Bureau to demonstrate, 
with supporting documentation, that relief is justified, and we direct 
the Bureau to expedite action on any such petition.
c. Selection of the State Lessor
    25. In order to centralize leasing functions and facilitate 
coordination of spectrum use, we require a state seeking to benefit 
from our voluntary secondary markets opportunities to select a single 
state entity that is a statewide 4.9 GHz band licensee to act as the 
State Lessor. Where a state has a single statewide license, we will 
treat that licensee as the default State Lessor. A default State Lessor 
may, in its discretion, assign its license to another statewide entity 
if that entity is deemed a more appropriate State Lessor; the 
assignment application must include a designation letter from the 
governor (or his or her designee) akin to that required by Sec.  90.529 
of our rules certifying that the assignee is the entity the state has 
selected to be the State Lessor.
    26. If a state has multiple statewide licenses held by state 
entities and voluntarily seeks to lease, the state must select one of 
those entities as the State Lessor. A statewide licensee not selected 
as State Lessor may continue to operate pursuant to its authorization 
but will not be permitted to lease spectrum rights. As part of any 
lease arrangement with a lessee, a State Lessor must submit to the 
Commission FCC Form 608 accompanied by evidence that it has been 
selected as State Lessor. Such evidence shall consist of a copy of the 
written agreement signed by each of the state's multiple statewide 
licensees indicating the selection of the State Lessor. If states with 
multiple statewide licensees are unable to reach such an agreement, we 
will accept in the alternative (as an attachment to FCC Form 608) a 
gubernatorial letter designating a certain state entity licensee as the 
State Lessor. To reduce administrative and regulatory burdens, we find 
it unnecessary to mandate a Commission pre-approval process for a state 
entity seeking State Lessor status prior to actually engaging in lease 
arrangements. We anticipate that, under this market-based approach, a 
prospective lessee engaged in negotiations with a prospective State 
Lessor will seek assurances that the requisite State Lessor 
documentation (either a multi-licensee agreement or a gubernatorial 
letter) has been executed prior to submission of an FCC Form 608 
seeking Commission approval of, or provide notice to the Commission of, 
a specific lease arrangement, as applicable. Pursuant to our state-
based approach to expanding secondary markets opportunities in the 4.9 
GHz band, leasing will not be permitted in those states that have no 
statewide licensee.
d. Application of the Secondary Markets Framework to State Lessors
    27. The Commission's Secondary Markets framework provides for a 
variety of leasing vehicles, any of which the State Lessor and its 
lessee(s) will be free to enter into depending on which best 
accommodates the needs of their state. This includes de facto transfer 
spectrum leasing arrangements, where the licensee retains de jure 
control of the license while de facto control of the leased spectrum is 
transferred to the spectrum lessee; and spectrum manager leasing 
arrangements, where the lessee is permitted to use the spectrum, but 
the licensee retains both de jure and de facto control. In determining 
the appropriate leasing vehicle, we expect a State Lessor to evaluate 
its ability as lessor to comply with state law requirements related to 
leasing activities. The State Lessor should only enter into lease 
arrangements that it is legally and organizationally equipped to 
implement.

[[Page 76474]]

    28. Consistent with our Secondary Markets rules, State Lessors 
entering into spectrum lease agreements must comply with our existing 
part 1 leasing rules, including: Filing an FCC Form 608, either seeking 
prior Commission approval to enter into the lease (for a de facto 
transfer spectrum lease) or providing notice of the lease (for spectrum 
manager leases); Complying with the requirements associated with the 
chosen type of leasing agreement, including the level of control 
required to be maintained by the State Lessor for either a de facto 
transfer spectrum lease or a spectrum manager lease; Fulfilling all 
obligations associated with compliance with the Communications Act and 
Commission rules associated with the original license; Complying with 
our rules on assignments and transfers of control for spectrum leasing 
arrangements in the 4.9 GHz band; and Ensuring that spectrum leasing 
arrangements include all required contractual provisions.
    29. We also note that certain licensees have a waiver of the 
prohibition on aeronautical use in the 4.9 GHz band. If a State Lessor 
has been granted a waiver of the Sec.  90.1205(c) aeronautical 
prohibition, that right is not transferable to a lessee. A lessee 
seeking to engage in aeronautical mobile operations must submit a 
request for waiver accompanied by a sufficient technical justification 
and an exhibit demonstrating the State Lessor's support for the waiver.
2. Rights and Responsibilities of Lessees
    30. To increase flexibility and encourage more efficient use of the 
4.9 GHz band, lessees of 4.9 GHz band spectrum will not be subject to 
the requirement that they use the spectrum in support of public safety 
and may engage in flexible use fixed or mobile operations.
    31. Lessees will be permitted to conduct any type of operation, 
including commercial, CII, or those in support of public safety. 
Lessees of a geographic area will be permitted to construct base 
stations and engage in mobile operations, and to construct temporary 
fixed sites within the lease area as permitted by the lease agreement 
as if they were a 4.9 GHz band licensee. They will not, however, have 
the authority to add stations/sites that are required to be 
individually licensed by our rules. These include permanent fixed sites 
and base stations that must be individually licensed due to their 
location. In the event a lessee's operations require individual site 
licensing under Sec.  90.1207, the State Lessor will be required to 
file for a license and then lease the licensed site to the lessee.
    32. The informal coordination requirements of Sec.  90.1209(b) will 
apply to lessees in the same way as licensees. Accordingly, lessees 
have the obligation to cooperate with other operators in and around 
their area of operations in the selection and use of channels in order 
to reduce interference and make the most efficient use of the band in 
the same manner as licensees. Our rules require cooperation in the 
resolution of harmful interference to the mutual satisfaction of 
operators, including lessees, and they also preserve the authority of 
the Commission to impose operational restrictions to resolve 
interference. Lessees also must adjust operations to prevent, or 
resolve, interference to any fixed links with primary status.
    33. Lessees, like a State Lessor, will be required to comply with 
all relevant provisions of our Secondary Markets rules, including, for 
example, our subleasing rules if the lease agreement permits such 
subleasing. They also will be required to comply with any other 
requirements applicable to their operations, such as those under part 9 
of our rules, whereby commercial mobile radio service (CMRS) providers 
and other relevant entities remain responsible for compliance with 9-1-
1 and Enhanced 9-1-1 obligations, if applicable.
3. 4.9 GHz Incumber Licensee Rights
    34. We clarify that the adoption of the Sixth Report and Order does 
not modify the rights of an incumbent 4.9 GHz band licensee other than 
a licensee selected to be a State Lessor. An incumbent is a 4.9 GHz 
licensee with an active license as reflected in ULS as of the adoption 
of the Freeze Public Notice, or a 4.9 GHz licensee granted an 
authorization pursuant to a waiver of, or modification of, the freeze. 
An incumbent licensee, whether a public safety agency or a 
nongovernmental organization, may continue to operate existing 
system(s) or make additional deployments pursuant to the terms of its 
license, consistent with our rules and the Freeze Public Notice. 
Incumbents must work with lessees to prevent and resolve harmful 
interference through cooperation in the same way they do today with 
other 4.9 GHz licensees, and a State Lessor and its lessee(s) also must 
work with incumbents to prevent and resolve harmful interference. The 
Commission retains the authority to impose operational conditions as 
needed in the event this cooperation fails to resolve interference 
concerns, whether between licensees, licensees and lessees, or lessees 
themselves.

C. Elimination of the Public Safety Use Restrictions for State Lessors

    35. This action expands access to the 4.9 GHz band through a 
revised leasing framework. To further increase flexibility in the use 
of valuable spectrum and to incentivize secondary markets activity in 
this band, we revise our rules to eliminate the requirement that a 
State Lessor licensee only use its 4.9 GHz band spectrum for public 
safety purposes. In the Sixth FNPRM, the Commission sought comment on a 
range of potential approaches to expanding use of the band in addition 
to leasing. For example, if critical infrastructure industries were 
permitted access as 4.9 GHz licensees, the Commission sought comment on 
whether they should be required to provide public safety services or be 
able to use the spectrum for any purpose. Noting that 4.9 GHz spectrum 
has been underutilized, the Commission specifically sought comment on 
redesignating the 4.9 GHz band, wholly or partially, to support 
commercial wireless use. The Commission asked whether the public 
interest would be ``best served if this spectrum could be used for 
commercial applications, such as 5G . . .'' and how to divide the band 
between public safety and commercial use if only a portion of the band 
were to be redesignated. The Commission also sought comment on ``any 
other alternatives to support commercial wireless use of the 4.9 GHz 
band.''
    36. We believe that modifying a State Lessor's rights to permit 
non-public safety use is an alternative approach that promotes 
efficient spectrum use, incentivizes leasing activity, and is 
consistent with our action in this document allowing a State Lessor to 
lease spectrum for non-public safety purposes. Permitting a State 
Lessor to engage in non-public safety uses will more fully empower each 
state to determine the highest and best use for the 4.9 GHz band in its 
jurisdiction and to consider a wider range of spectrum use options that 
best accommodate its citizens' communications needs, whether through 
its own operations or through those of third party lessees. A State 
Lessor will also have the flexibility to determine whether to only 
conduct public safety operations under its license, or not allow non-
public safety use through leasing. We anticipate, however, that 
centralized state-based control of non-public safety use will 
incentivize secondary markets activity and encourage greater spectrum 
use, and we explore a more expanded state-

[[Page 76475]]

based model for the 4.9 GHz band in the accompanying Seventh FNPRM. We 
clarify that State Lessors that opt to operate as a CMRS provider will 
be regulated as such and will be subject to all relevant rules 
applicable to that type of service, including part 9 of our rules, 
regarding responsibility for compliance with 9-1-1 and Enhanced 9-1-1 
obligations. Further, in the event that a 4.9 GHz band licensee other 
than a State Lessor seeks the flexibility to engage in non-public 
safety operations, it will be required to lease the necessary spectrum 
rights from the State Lessor in its jurisdiction.

D. Authority To Allow Flexible-Use and Leasing in the 4.9 GHz Band

    37. Section 301 of the Communications Act, as amended, requires 
grant of a license to authorize use of radio transmissions, but 
specifies that a grant shall not be construed to create ``any right 
beyond the terms, conditions, and periods of the license.'' Under our 
current 4.9 GHz band rules, all operations in the band must be in 
support of public safety. Under the new 4.9 GHz band leasing regime we 
adopt in this document, we eliminate this restriction for a State 
Lessor and for that entity's lessee(s). The terms and conditions for 
that 4.9 GHz licensee's authorization, based on the revised rules, will 
now include the right to engage in operations other than those in 
support of public safety and to lease to entities that are not required 
to conduct or support public safety operations. We find that permitting 
more flexible spectrum use in the underused 4.9 GHz band is consistent 
with our broad authority to license spectrum rights under the 
Communications Act and to define the terms of spectrum licenses by 
prescribing the circumstances in which certain uses are permitted or 
prohibited, both by licensees and by lessees.

E. Alternative Approaches From the Sixth FNPRM

    38. We determine that allowing spectrum leasing to non-public 
safety entities through negotiated agreements between a State Lessor 
and lessees has potential to significantly increase efficient use of 
the 4.9 GHz band in the near term, compared with alternative approaches 
upon which the Commission sought comment. In the Sixth FNPRM, we sought 
comment not only on spectrum leasing, but also on several alternative 
approaches to stimulate expanded use of, and investment in, the band. 
These included: (i) The expansion of licensee eligibility; (ii) a two-
tiered sharing structure; (iii) a revised band plan, including 
reserving certain channels for aeronautical mobile and robotic use; 
(iv) more formal coordination requirements and regional planning 
coordinator (RPC) plans; and (v) new technical rules. We find that the 
proposed alternative approaches are less likely to increase the 
efficient use of spectrum in the band as compared with the approach we 
adopt in this Sixth Report and Order. The adopted approach effectively 
protects public safety interests while allowing state public safety 
entities to control commercial access. We defer consideration of 
certain other proposals explored in the Sixth FNPRM that are not 
precluded by expanded leasing, including whether to permit aeronautical 
and robotic use, to the accompanying Seventh FNPRM.
    39. Expanding Eligibility to CII. We decline to expand eligibility 
for obtaining licenses in the band to include CII entities or to 
restrict lessee eligibility to CII entities. Limiting non-public safety 
use to one industry, or otherwise restricting non-public safety 
eligibility, would both significantly reduce opportunities to expand 
investment in the band. This approach would be contrary to the 
Commission's longstanding policy of promoting flexible licensing to 
ensure the most efficient use of spectrum. Such a limitation also would 
be contrary to our statutory mandates to promote economic opportunity 
and competition, and the efficient and intensive use of electromagnetic 
spectrum. We agree with commenters who contend that CII has a 
demonstrated need for increased access to reliable broadband services 
to promote smart grid technologies and fast, secure communications 
networks, and we address this need by removing the requirement that 4.9 
GHz spectrum must be used for public safety support operations as it 
applies to lessees. We fully encourage CII and other non-public safety 
and commercial entities to pursue 4.9 GHz secondary market 
opportunities through the framework we establish in this document.
    40. Redesignation of the Band. The Commission sought comment in the 
Sixth FNPRM on whether to redesignate the 4.9 GHz band, wholly or 
partially, for commercial use, on a licensed or unlicensed basis. We 
decline to adopt this change because it would provide less protection 
for public safety use than would our decision to provide for expanded 
spectrum access through the secondary market while retaining public 
safety operations in the band. Given the interest in this band by both 
commercial and non-commercial users, we believe that our leasing 
framework achieves the right balance between commercial and non-
commercial access; with minimal disruption to existing public safety 
operations in the band; it permits states, working in coordination with 
their public safety entities, to determine in the first instance the 
amount of spectrum needed for those public safety operations. While 
several commenters note the continued need for spectrum to support 
public safety operations, most commenters recognize the need to allow 
non-public safety operations in the band to maximize use of this 
spectrum. At the same time, commenters overwhelmingly oppose giving 
non-public safety entities access by redesignating the band for 
commercial use.
    41. Two-tiered Sharing on a Secondary Basis. The Sixth FNPRM sought 
comment on two-tiered sharing as an alternative approach for increasing 
use of the 4.9 GHz band. Under two-tiered sharing, ``Tier 1 would 
consist of primary licensees in the band (including all incumbent 
users), while Tier 2 would allow other non-public safety users to 
access the band on a secondary basis, with safeguards to ensure 
priority and interference protection for Tier 1 operations.'' The 
majority of commenters, citing technical barriers to adequately 
protecting public safety operations, oppose two-tiered sharing. 
Commenters that support two-tiered sharing stated that it would 
``encourage a more robust market for equipment and greater innovation, 
while protecting primary public safety users from harmful 
interference.'' We find, however, that a state-based leasing framework 
we adopt in this document more effectively achieves the twin goals of 
making valuable mid-band spectrum available for flexible use and 
continuing to support public safety operations. Although we adopt 
leasing in the 4.9 GHz band rather than two-tiered sharing, we seek 
comment in the accompanying Seventh FNPRM on future use of dynamic 
sharing in this band and how such systems can further promote the 
adopted leasing regime.
    42. Coordination and Regional Planning. In the Sixth FNPRM, the 
Commission proposed to require certified frequency coordination for 
licensing in the 4.9 GHz band. The Commission also sought comment on 
expanding the data contained in the Universal Licensing System to 
include more information than site licensing in order to facilitate 
this coordination. In addition, the Commission also sought comment on 
ways to increase the flexibility of Regional Planning Committees in 
facilitating use of the 4.9 GHz band.
    43. The frequency coordination proposal described in the Sixth 
FNPRM

[[Page 76476]]

is no longer relevant under the new leasing regime, which will allow 
licensees to continue to coordinate amongst themselves, and with new 
lessees, to ensure the most efficient use of the band and to mitigate 
harmful interference. We note that, while the record supports these 
proposals generally, stakeholders did not address the specific need for 
reliance on frequency coordinators, increased data, or Regional 
Planning Committees under a leasing framework.
    44. Given the secondary market approach we adopt in this document, 
we decline to mandate use of frequency coordinators in the 4.9 GHz band 
application process, modify the rules regarding regional plans, or 
otherwise require additional filings with the Commission regarding the 
type and quantity of 4.9 GHz band deployments. We do, however, seek 
comment in the accompanying Seventh FNPRM on ways to encourage cross-
jurisdictional coordination of 4.9 GHz band spectrum leasing, 
particularly in the context of the model for a State Band Manager to 
coordinate public safety operations alongside lessee operations on 
which we seek comment. As part of this proposal, we also seek comment 
on alternate means of maintaining easily accessible records of 
deployments as the nature of licensing in the 4.9 GHz band evolves.
    45. Technical Rule Changes. In the Sixth FNPRM, the Commission 
proposed or sought comment on a series of changes to our technical 
rules intended to facilitate sharing between public safety licensees, 
including: (1) Modifying the channelization plan and bandwidth 
aggregation rules; (2) designating particular channels for aeronautical 
mobile and robotic use; (3) adopting technical standards for equipment; 
(4) rules governing the use of point-to-multipoint systems; and (5) 
power limits and polarization requirements on point-to-point systems. 
Commenters disagreed on these technical changes. Some commenters noted 
that the potential changes conflicted in certain cases, and commenters 
differed on which changes offered the most promise for preventing 
interference and promoting greater use of the band. We decline to adopt 
these changes, as they have the potential to limit licensee and lessee 
flexibility in designing leasing arrangements best suited for their 
operations, and they could undermine the benefits of the state-based 
leasing regime for both public safety and non-public safety users of 
the band. We also find that these rule changes would not sufficiently 
increase use of the 4.9 GHz band or further our goal of encouraging 
robust secondary market activity. As stated, the leasing regime we 
adopt in this document provides states the flexibility, within the 
current technical rules, to reach voluntary agreements that will not 
only expand access to the band, but also provide for mutually adequate 
protections for State Lessors and their lessee(s).
    46. Public Safety Priority. In the Sixth FNPRM, the Commission 
sought comment on how best to ensure that, if so desired, public safety 
entities would retain priority access to 4.9 GHz spectrum in a 
commercial leasing framework. The Commission also sought comment on 
whether non-public safety entities that lease spectrum capacity should 
have primary status because they entered into agreements with specific 
public safety licensees. We received no specific comments addressing 
this issue in the context of the leasing framework we adopt in this 
document, though one commenter expresses concern regarding a State 
Lessor making determinations as to the scope of public safety priority 
access. Through this action, we increase a state's flexibility to 
determine the scope of any operational needs, and we therefore decline 
to mandate public safety priority access to the band or provide primary 
status to non-public safety lessees. The leasing regime we adopt relies 
on coordination among licensees and lessees and permits each state to 
determine the extent to which priority access is a critical component 
of its vision for the band's use in its state; we empower each State 
Lessor to decide whether to include public safety priority provisions 
in any lease arrangement based on its judgment regarding the best use 
of the 4.9 GHz band. States will act on behalf of their subordinate 
public safety entities and may choose to require priority access 
protections, enforceable through contractual lease provisions, or they 
may determine that such priority is unnecessary for their state. State 
Lessors that are unable to come to satisfactory terms on this issue may 
decline to lease, without unnecessary Commission involvement.

F. Bureau Modification of Application Freeze

    47. Pursuant to the Bureaus' September 8, 2020 freeze, no new or 
modified applications for 4.9 GHz band licenses are currently being 
accepted or processed. This includes applications to license permanent 
fixed sites (i.e., those in place for one year or longer). In order to 
facilitate effective use of the band--both by public safety licensees 
and by non-public safety lessees--pending resolution of the issues 
raised below in the accompanying Seventh FNPRM, we direct the Bureaus 
to make modifications to the freeze by Public Notice, following the 
effective date of this Sixth Report and Order, to permit the acceptance 
and processing of certain applications. Specifically, we direct the 
Bureaus to modify the current freeze to permit the filing of 
applications for a statewide license from a single entity per state in 
a state that does not have a statewide licensee at the time of the 
freeze, provided that entity is also designated by the state as the 
State Lessor. Further, in order to not complicate the landscape of this 
band and reduce the flexibility that states have in determining the 
highest and best use of the spectrum, we direct the Bureaus to modify 
the current freeze to accept and process applications for permanent 
fixed site licenses only if filed by a State Lessor. If a public safety 
licensee other than a State Lessor seeks authority to construct and 
operate a new permanent fixed site, it may lease from a State Lessor 
provided that the State Lessor has a license for that facility.

IV. Final Regulatory Flexibility Analysis

A. Need for, and Objectives of, the Final Rules

    48. The Sixth Report & Order continues the Commission efforts to 
expand access to mid-band spectrum by opening the band for flexible use 
via the secondary market while continuing to ensure access for public 
safety operations. The history of this band indicates that public 
safety operations do not require exclusive access to the entire 50 
megahertz of spectrum and can safely share this band with other 
operations. The actions we take in this document allow one statewide 
licensee of the 4.9 GHz (4940-4990 MHz) band in each state (the State 
Lessor) to lease some or all of their spectrum rights to third parties 
that are otherwise eligible to be a spectrum lessee for fixed or mobile 
use, including to commercial entities, and eliminates the requirement 
that, when leased or used by the State Lessor, the spectrum must be 
used to support public safety. We only permit states that are not 
identified in the Commission's December 2019 911 Fee Report as 
diverting 911 fees for non-911 purposes to lease spectrum rights to 
non-public safety or public safety entities. We anticipate that 
unrestricted secondary market transactions and non-public safety use 
will encourage greater development of equipment for this band, driving 
down costs and making it easier for public safety and non-public

[[Page 76477]]

safety entities alike to deploy operations. Furthermore, making 
available mid-band spectrum for commercial use is critical in ensuring 
U.S. leadership in 5G and in helping to close the digital divide.

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

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

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

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

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

    52. 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 rules adopted herein. 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 Small Business 
Administration (SBA).
    53. Small Business, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three broad groups of small entities that could be directly 
affected herein. First, while there are industry specific size 
standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the SBA's Office of 
Advocacy, in general a small business is an independent business having 
fewer than 500 employees. These types of small businesses represent 
99.9% of all businesses in the United States which translates to 30.7 
million businesses.
    54. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2018, there were 
approximately 571,709 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    55. Finally, the small entity described as a ``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.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,075 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 36,931 general purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment populations of less than 50,000. Accordingly, 
based on the 2017 U.S. Census of Governments data, we estimate that at 
least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    56. Private Land Mobile Radio Licensees. Private land mobile radio 
(PLMR) systems serve an essential role in a vast range of industrial, 
business, land transportation, and public safety activities. Companies 
of all sizes operating in all U.S. business categories use these 
radios. Because of the vast array of PLMR users, the Commission has not 
developed a small business size standard specifically applicable to 
PLMR users. The closest applicable SBA category is Wireless 
Telecommunications Carriers (except Satellite) which encompasses 
business entities engaged in radiotelephone communications. The 
appropriate size standard for this category under SBA rules is that 
such a business is small if it has 1,500 or fewer employees. For this 
industry, U.S. Census Bureau data for 2012 shows that there were 967 
firms that operated for the entire year. Of this total, 955 firms had 
employment of 999 or fewer employees and 12 had employment of 1,000 
employees or more. Thus under this category and the associated size 
standard, the Commission estimates that the majority of PLMR licensees 
are small entities.
    57. According to the Commission's records, a total of approximately 
269,953 licenses comprise PLMR users. Of this number, there are a total 
of 3,578 PLMR licenses in the 4.9 GHz band. The Commission does not 
require PLMR licensees to disclose information about number of 
employees, and does not have information that could be used to 
determine how many PLMR licensees constitute small entities under this 
definition. The Commission however believes that a substantial number 
of PLMR licensees may be small entities despite the lack of specific 
information.
    58. Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. This industry comprises establishments 
primarily engaged in manufacturing radio and television broadcast and 
wireless communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment. The SBA has established a size standard for 
this industry of 1,250 employees or less. U.S. Census Bureau data for 
2012 show that 841 establishments operated in this industry in that 
year. Of that number, 828 establishments operated with fewer than 1,000 
employees, 7 establishments operated with between 1,000 and 2,499 
employees and 6 establishments operated with 2,500 or more employees. 
Based on this data, we conclude that a majority of manufacturers in 
this industry are small.
    59. Wireless Telecommunications Carriers (except Satellite). 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 services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census Bureau data for 2012 show that there were 967 firms that 
operated for the entire year. Of this total, 955 firms employed fewer 
than 1,000 employees and 12 firms employed of 1,000 employees or more. 
Thus under this

[[Page 76478]]

category and the associated size standard, the Commission estimates 
that the majority of Wireless Telecommunications Carriers (except 
Satellite) are small entities.
    60. The Commission's own data--available in its Universal Licensing 
System--indicate that, as of August 31, 2018 there are 265 Cellular 
licensees that will be affected by our actions. The Commission does not 
know how many of these licensees are small, as the Commission does not 
collect that information for these types of entities. Similarly, 
according to internally developed 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 this total, an 
estimated 261 have 1,500 or fewer employees, and 152 have more than 
1,500 employees. Thus, using available data, we estimate that the 
majority of wireless firms can be considered small.
    61. Frequency Coordinators. Neither the Commission nor the SBA has 
developed a small business size standard specifically applicable to 
spectrum frequency coordinators. The closest applicable SBA category is 
Business Associations which comprises establishments primarily engaged 
in promoting the business interests of their members. The SBA has 
developed a small business size standard for ``Business Associations,'' 
which consists of all such firms with gross annual receipts of $8 
million or less. For this category, U.S. Census Bureau data for 2012 
shows that there were 14,996 firms that operated for the entire year. 
Of these firms, a total of 14,229 had gross annual receipts of less 
than $5 million and 396 firms had gross annual receipts of $5 million 
to $9,999,999.
    62. There are 13 entities certified to perform frequency 
coordination functions under Part 90 of the Commission's rules. 
According to U. S. Census Bureau data approximately 95% of business 
associations have gross annual receipts of $8 million or less and would 
be classified as small entities. The Business Associations category is 
very broad however and does not include specific figures for firms that 
are engaged in frequency coordination. Thus, the Commission is unable 
to ascertain exactly how many of the frequency coordinators are 
classified as small entities under the SBA size standard. Therefore, 
for purposes of this FRFA under the associated SBA size standard, the 
Commission estimates that a majority of the 13 FCC-certified frequency 
coordinators are small.

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

    63. The new leasing opportunities created in the Sixth Report & 
Order will result in reporting, recordkeeping and compliance 
obligations for State Lessor licensees and lessees of 4.9 GHz band 
spectrum who elect to enter leasing arrangements for this spectrum. 
More specifically, a 4.9 GHz band State Lessor entering into leases 
will be required to file an FCC Form 608, either seeking prior 
Commission approval to enter into the lease for a de facto transfer 
spectrum lease or providing notice of the lease for spectrum manager 
leases. These requirements are consistent with existing Commission 
Secondary Market rules. Where a state has multiple statewide licenses 
held by state entities and voluntarily seeks to lease, the state must 
select one of the licensees as the State Lessor. As part of any lease 
arrangement with a lessee, a State Lessor must submit to the Commission 
FCC Form 608 accompanied by evidence that it has been selected as State 
Lessor. Such evidence shall consist of a copy of the written agreement 
signed by each of the state's multiple statewide licensees indicating 
the selection of the State Lessor. If states with multiple statewide 
licensees are unable to reach such an agreement, we will accept in the 
alternative (as an attachment to FCC Form 608) a gubernatorial letter 
designating a certain state entity licensee as the State Lessor.
    64. State Lessors will be required to comply with our Secondary 
Markets rules, in particular our existing part 1 leasing rules 
associated with entering into spectrum lease agreements which includes 
fulfilling all obligations associated with compliance with the 
Communications Act and Commission rules associated with the original 
license; complying with our rules on assignments and transfers of 
control for spectrum leasing arrangements in the 4.9 GHz band; and 
ensuring that spectrum leasing arrangements meet all requirements as to 
contractual provisions. Similarly, lessees will be required to comply 
with all relevant provisions of our Secondary Markets rules, including, 
for example, our subleasing rules if the lease agreement permits such 
subleasing. Lessees will also be required to comply with any other 
requirements applicable to their operations, such as those under part 9 
of our rules, whereby commercial mobile radio service (CMRS) providers 
and other relevant entities remain responsible for compliance with 9-1-
1 and Enhanced 9-1-1 obligations, if applicable. Additionally, lessees 
will be subject to compliance with the informal coordination 
requirements of section 90.1209(b) in the same way as licensees.
    65. The Commission does not believe the rules adopted in the Sixth 
Report & Order will require small entities to hire attorneys, 
engineers, consultants, or other professionals in order to comply with 
the rule changes. Similarly, although the Commission cannot quantify 
the cost of compliance with the rule changes discussed herein, we do 
not believe that the costs and/or administrative requirements 
associated with any of the adopted rule changes will unduly burden 
small entities. Our actions to permit leasing of 4.9 GHz band spectrum 
by a statewide licensee is the fastest and most efficient way to drive 
interest and investment in the band. Moreover, we expect the absence of 
restrictions on lessee eligibility will open the band to new commercial 
and other non-public safety operation uses. We anticipate that allowing 
spectrum leasing opportunities in this band will ultimately decrease 
deployment barriers--such as high equipment costs--for both public 
safety licensees as well as new lessees in the 4.9 GHz band.

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

    66. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for 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.
    67. The rules the Commission adopts should benefit small entities 
by giving them more options for gaining access to valuable wireless 
spectrum and increasing economic opportunity. Our actions to open the 
4.9 GHz band to the secondary market to permit leasing by a statewide 
licensee and not to limit lessee eligibility will allow participating 
small entities to avoid operational costs that may have otherwise 
ensued had we not taken this approach. Moreover, our actions may drive 
down the costs of compatible equipment and facilitate

[[Page 76479]]

innovative cost-sharing arrangements between public safety licensees 
and non-public safety lessees both of which would benefit and minimize 
the economic impact for participating small entities. Similarly, small 
entities stand to benefit from our finding that limiting non-public 
safety use to one industry, or otherwise restricting non-public safety 
eligibility, would limit opportunities to grow significantly investment 
in the 4.9 GHz band. This determination is consistent with the 
Commission's longstanding policy of allowing flexible licensing to 
ensure the most efficient use of spectrum and our statutory mandates to 
promote economic opportunity and competition, and the efficient and 
intensive use of electromagnetic spectrum.
    68. In the Sixth FNPRM, the Commission put forth a number of other 
proposals for consideration to stimulate expanded use of and investment 
in the 4.9 GHz band including: (i) A revised band plan, that included 
reserving certain channel for aeronautical mobile and robotic use; (ii) 
more formal coordination requirements; (iii) additional information 
collection and registration of the use of the band, that included new 
deployment reports and construction deadlines; (iv) new technical 
rules; and (v) additional regional planning. Given our decision to 
first permit broader use of the band through leasing, at this time we 
opted not to adopt any of these proposals and thereby minimize any 
additional economic impact on small entities that may have resulted 
from additional compliance requirements.

G. Report to Congress

    69. The Commission will send a copy of the Sixth Report & Order, 
including this FRFA, in a report to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Sixth Report & Order, including this FRFA, to the Chief Counsel 
for Advocacy of the SBA. A copy of the Sixth Report & Order, and FRFA 
(or summaries thereof) will also be published in the Federal Register.

V. Ordering Clauses

    70. Accordingly, it is ordered that, pursuant to the authority 
found in sections 4(i), 302, 303(b), 303(f), 303(g), 303(r), and 405 of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302a, 
303(b), 303(f), 303(g), 303(r), and 405, this Sixth Report and Order is 
hereby adopted.
    71. It is further ordered that the rules and requirements adopted 
herein will become effective thirty (30) days after publication in the 
Federal Register, with the exception of Sec.  90.1217. Section 90.1217 
contains new or modified information collection requirements that 
require review by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. The Commission directs the Wireless 
Telecommunications Bureau to announce the effective date of those 
information collections in a document published in the Federal Register 
after the Commission receives OMB approval, and directs the Wireless 
Telecommunications Bureau to cause Sec.  90.1217 to be revised 
accordingly.
    72. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Sixth Report and Order, including the Final Regulatory 
Flexibility Analysis and the Initial Regulatory Flexibility Analysis, 
to the Chief Counsel for Advocacy of the Small Business Administration.
    73. It is further ordered that the Commission shall send a copy of 
this Sixth Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Parts 1 and 90

    Communications equipment, Organization and functions (Government 
agencies), Radio, Reporting and recordkeeping requirements, 
Telecommunications.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 1 and 90 to read as 
follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority:  47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461, unless 
otherwise noted.


0
2. Effective December 30, 2020, revise Sec.  1.9001 to read as follows:


Sec.  1.9001  Purpose and scope.

    (a) The purpose of this subpart is to implement policies and rules 
pertaining to spectrum leasing arrangements between licensees in the 
services identified in this subpart and spectrum lessees. This subpart 
also implements policies for private commons arrangements. The policies 
and rules in this subpart also implicate other Commission rule parts, 
including parts 1, 2, 20, 22, 24, 25, 27, 30, 80, 90, 95, and 101 of 
title 47, chapter I of the Code of Federal Regulations.
    (b) Except as provided in paragraph (c) of this section, licensees 
holding exclusive use rights are permitted to engage in spectrum 
leasing whether their operations are characterized as commercial, 
common carrier, private, or non-common carrier.
    (c) A State Lessor licensee (as defined in Sec.  90.1217 of this 
chapter) in the shared 4940-4990 MHz band (see part 90, subpart Y, of 
this chapter) is permitted to lease some or all of the spectrum rights 
under its license, except that a state identified as diverting 911 fees 
in the Commission's December 2019 911 Fee Report sent to Congress 
pursuant to 47 U.S.C. 615a-1(f)(2) shall not be permitted to lease 4.9 
GHz spectrum.

0
3. Effective December 30, 2020, amend Sec.  1.9005 by adding paragraph 
(oo) to read as follows:


Sec.  1.9005  Included services.

* * * * *
    (oo) The 4940-4990 MHz band (part 90 of this chapter).

0
4. Effective December 30, 2020, revise Sec.  1.9048 to read as follows:


Sec.  1.9048  Special provisions relating to spectrum leasing 
arrangements involving licensees in the Public Safety Radio Services.

    (a) Licensees in the Public Safety Radio Services (see part 90, 
subpart B, and Sec.  90.311(a)(1)(i) of this chapter) may enter into 
spectrum leasing arrangements with other public safety entities 
eligible for such a license authorization as well as with entities 
providing communications in support of public safety operations (see 
Sec.  90.523(b) of this chapter).
    (b) In addition to spectrum leasing arrangements permitted under 
paragraph (a) of this section, a State Lessor (as defined in Sec.  
90.1217 of this chapter) in the 4940-4990 MHz band (see part 90, 
subpart Y, of this chapter) may enter into spectrum leasing 
arrangements with any entity eligible under this part to be a spectrum 
lessee, except that a state identified as diverting 911 fees in the 
Commission's December 2019 911 Fee Report sent to Congress pursuant to 
47 U.S.C. 615a-1(f)(2) shall not be permitted to lease 4.9 GHz 
spectrum.

[[Page 76480]]

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

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

    Authority: 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7), 
1401-1473.


0
6. Effective December 30, 2020, revise Sec.  90.1203 to read as 
follows:


Sec.  90.1203  Eligibility.

    (a) Entities providing public safety services (as defined in Sec.  
90.523) are eligible to hold a Commission license for systems operating 
in the 4940-4990 MHz band. All of the requirements and conditions set 
forth in Sec.  90.523 also govern authorizations in the 4940-4990 MHz 
band.
    (b) 4.9 GHz band licensees may enter into sharing agreements or 
other arrangements for use of the spectrum with entities that do not 
meet the eligibility requirements in this section. However, all 
applications in the band are limited to operations in support of public 
safety, except as provided in paragraph (c) of this section.
    (c) Operations conducted pursuant to a license held by a State 
Lessor (as defined in Sec.  90.1217), whether conducted by the State 
Lessor or its lessee(s), are not limited to operations in support of 
public safety. For purposes of subpart X of part 1 of this chapter, 
such lessees shall be deemed eligible and qualified as a licensee, 
notwithstanding paragraph (a) of this section.

0
7. Delayed indefinitely, add Sec.  90.1217 to read as follows:


Sec.  90.1217  State Lessor.

    (a) The State Lessor shall have the authority to lease some or all 
of its 4.9 GHz band spectrum usage rights, including geographic areas 
licenses or permanent fixed sites individually licensed under Sec.  
90.1207, pursuant to subpart X of part 1 of this chapter, to any entity 
eligible to be a spectrum licensee under subpart X of part 1.
    (b) In each state (as defined in Sec.  90.7) one state entity 
holding a statewide license may be selected as a State Lessor.
    (1) In states where there is only one state entity holding a 
statewide license, that licensee will be deemed the State Lessor.
    (2) In states where there are multiple state entities holding a 
statewide license, one must be selected as the State Lessor if seeking 
to lease 4.9 GHz band spectrum use rights. This selection must be 
demonstrated through the inclusion of a letter, signed by all state 
entities holding a statewide license in that state, affirming the 
selection of a State Lessor for that state, in any application to the 
Commission that requires demonstration of State Lessor Status, 
including FCC Form 608. If states with multiple state entities holding 
a statewide license are unable to reach an agreement affirming a State 
Lessor selection, the Commission will accept in the alternative a 
letter, signed by the elected chief executive (Governor) of that state, 
or his or her designee, affirming the selection of a State Lessor for 
that state.
    (c) The State Lessor may assign its license to another state entity 
eligible for a statewide license.
    (1) Any assignment application must be accompanied by a letter, 
signed by the elected chief executive (Governor) of that state, or his 
or her designee, affirming the selection of the assignee as the State 
Lessor for that state.
    (2) Any assignment of the State Lessor's license must include all 
permanent fixed site authorizations obtained while a State Lessor. A 
licensee selected as the State Lessor may only assign its entire 
license and may not partition or disaggregate its license.

[FR Doc. 2020-23506 Filed 11-27-20; 8:45 am]
BILLING CODE 6712-01-P