[Federal Register Volume 88, Number 39 (Tuesday, February 28, 2023)]
[Proposed Rules]
[Pages 12637-12640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02611]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WP Docket No. 07-100; FCC 23-3; FR ID 126041]


Improving Public Safety Communications in the 4.9 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC) 
seeks comment on the details of implementing a new leasing model for 
the 4.9 GHz (4940-4990 MHz) band to achieve its goals of allowing 
robust locally controlled public safety operations while ensuring 
consistent, nationwide rules that promote overall spectral efficiency, 
foster innovation, and drive down equipment costs.

DATES: Interested parties may file comments on or before March 30, 
2023; and reply comments on or before May 1, 2023.

ADDRESSES: Federal Communications Commission, 45 L St NE, Washington, 
DC 20554.
    You may submit comments, identified by WP Docket No. 07-100, by any 
of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    [cir] Filings can be sent 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] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, 
and Priority mail must be addressed to 45 L Street NE, Washington, DC 
20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-
hand-delivery-policy .
    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 INFORMATION CONTACT: For additional information on this 
proceeding, contact Jon Markman of the Wireless Telecommunications 
Bureau, Mobility Division, at (202) 418-7090 or 
[email protected] or Brian Marenco of the Public Safety and 
Homeland Security Bureau at (202) 418-0838 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of Commission's Ninth 
Further Notice in WP Docket No. 07-100; FCC 23-3, adopted and released 
on January 18, 2023. The full text of this document is available for 
public inspection online at https://docs.fcc.gov/public/attachments/FCC-23-3A1.pdf.
    1. In this Ninth Further Notice, the Commission seeks comment on a 
range of questions related to the implementation of its new Band 
Manager model for the 4.9 GHz band adopted in the Seventh Report and 
Order. This model will preserve the essentially public safety nature of 
the band while decreasing access costs and expanding use to a variety 
of primary public safety and secondary non-public safety operations.
    2. First, it seeks comment on the Band Manager's efforts in 
coordinating public safety operations, in particular mitigating harmful 
interference and modernizing operations. Next, it seeks comment on the 
Band Manager's role in facilitating leasing to non-public safety users; 
how to enable such leasing, how to manage the revenues that arise from 
it, and how to ensure preemption rights for public safety operations. 
It also seeks comment on the implementation of our committee-based 
selection process for the Band Manager, which mirrors the approach the 
Commission has taken for selecting clearinghouses and transition 
coordinators in a number of other bands. Finally, it seeks comment on 
oversight of the Band Manager and on other issues related to the 
implementation of the Band Manager model.
    3. In particular, the Commission in this Ninth Further Notice 
builds off the record before it and seeks comment on specific criteria 
for protecting public safety licensees operating in the band from what 
it terms ``harmful

[[Page 12638]]

interference at 4.9 GHz.'' It seeks comment on what role the Band 
Manager should play, as part of its frequency coordination duties, in 
mediating or deciding disputes if parties disagree about existing or 
proposed operations. It also seeks further comment on whether the Band 
Manager should be able to engage with any broadband network providers 
(public safety and/or commercial) to pursue opportunities for 
integrating operations in the 4.9 GHz band with broadband networks used 
by public safety in other spectrum bands and how best to incorporate 
the latest commercially available technologies, including 5G, into the 
4.9 GHz band.
    4. Furthermore, the Commission in this Ninth Further Notice seeks 
input on two possible means of enabling Band Manager-coordinated non-
public safety leasing, as well as general considerations for creating 
an effective leased access model for the band, in particular, the need 
to ensure non-discriminatory treatment of potential lessees. Under 
either model, the Commission seeks to ensure that all potentially 
affected licensees are given the opportunity to consent to the leasing 
arrangements. It also proposes that the Band Manager be funded, at 
least partially, by leasing revenues, which will enable the Band 
Manager to be fully independent and equipped to engage in the kind of 
complex spectrum analysis needed to enable this leasing model. The 
Commission also seeks comment on how its rules should treat 
compensation to licensees, either directly from non-public safety 
operators or from the Band Manager.
    5. The Commission in this Ninth Further Notice also seeks comment 
on how to ensure preemption rights for public safety licensees over 
non-public safety users in emergency circumstances. It also seeks 
comment on the nature of a selection committee for the Band Manager and 
tentatively concludes that the selection committee should include 
representatives from the public safety community.
    6. The Commission also seeks comment in this Ninth Further Notice 
on the role it should play in overseeing the Band Manager's decisions, 
on how to address future licensing of the band, and on whether the new 
Band Manager framework presents new opportunities for unmanned aircraft 
systems (UAS) in the band.
    7. Finally, the Commission, as part of its continuing effort to 
advance digital equity for all, including people of color, persons with 
disabilities, persons who live in rural or Tribal areas, and others who 
are or have been historically underserved, marginalized, or adversely 
affected by persistent poverty or inequality, invites comment on any 
equity-related considerations and benefits (if any) that may be 
associated with the proposals and issues discussed in this Ninth 
Further Notice. Specifically, it seeks comment on how our proposals may 
promote or inhibit advances in diversity, equity, inclusion, and 
accessibility, as well the scope of the Commission's relevant legal 
authority.

Procedural Matters

Paperwork Reduction Act

    8. This Ninth Further Notice may contain new or modified 
information collection(s) subject to the Paperwork Reduction Act of 
1995. If the Commission adopts any new or modified information 
collection requirements, 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 other federal agencies are invited to 
comment on the new or modified information collection requirements 
contained in this proceeding. In addition, pursuant to the Small 
Business Paperwork Relief Act of 2002, we seek specific comment on how 
we might ``further reduce the information collection burden for small 
business concerns with fewer than 25 employees.''

Regulatory Flexibility Act

    9. The Regulatory Flexibility Act of 1980, as amended (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 an Initial Regulatory Flexibility Analysis (IRFA) concerning 
potential rule and policy changes contained in the Ninth Further 
Notice. The IRFA is contained in Appendix D of the Ninth Further 
Notice.

Initial Regulatory Flexibility Analysis

    10. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in the Ninth Further Notice of Proposed Rulemaking (Ninth 
Further Notice). Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments as specified in the Ninth Further Notice. 
The Commission will send a copy of the Ninth Further Notice, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the Ninth Further Notice and IRFA 
(or summaries thereof) will be published in the Federal Register.

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

    11. Having decided in the Seventh Report and Order that a 
nationwide Band Manager for the 4.9 GHz band is the best option for 
moving forward on a comprehensive nationwide, coordinated approach to 
the band, in the Ninth Further Notice the Commission seeks comment on 
the tentative conclusions, proposals and inquiries we put forth 
addressing the rights and responsibilities of the nationwide Band 
Manager regarding public safety and non-public safety operations, 
selection of the Band Manager, Commission oversight of the Band Manager 
and other considerations involving licensing and use of the band. More 
specifically, we seek comment in the Ninth Further Notice on an 
interference criteria for the Band Manager to apply as part of its 
frequency coordination duties. We also seek comment on the Band Manager 
mediating disputes, evaluating potential integration of the 4.9 GHz 
band with broadband networks used by public safety in other frequency 
bands, and facilitating the leasing of unused spectrum rights to non-
public safety entities which includes two possible leasing models that 
could be implemented. We further seek comment on our proposals 
regarding the applicable rules for leasing arrangements, the required 
consents for non-public safety use of the band, funding of the Band 
Manager primarily by leasing revenues, allowing the Band Manager to 
charge licensees and applicants reasonable rates for its coordination 
services and the eligibility criteria to be used by the selection 
committee in its evaluation process for Band Manager applicants.
    12. Finally, we seek comment on ensuring preemption rights for 
public safety licensees over non-public safety users, qualifications 
for any entity seeking the Band Manager position, a selection committee 
to select the Band Manager, the role of the Commission in overseeing 
the Band Manager as well as the contents of annual reports from the 
Band Manager, on future public safety

[[Page 12639]]

licensing of the band and on aeronautical mobile use of the band.
    13. In seeking comment on these issues, we believe the Commission 
can implement a nationwide framework for the 4.9 GHz band which ensures 
public safety operations continue to be prioritized while opening the 
band to additional users which will facilitate increased use of the 
band, encourage a more robust market for equipment and greater 
innovation, and at the same time protect public safety users from 
harmful interference.

B. Legal Basis

    14. The proposed action is authorized pursuant to sections 1, 4(i), 
4(j), 4(o), 301, 303(b), 303(g), 303(r), 316, 332, and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
154(o), 301, 303(b), 303(g), 303(r), 316, 332, and 403.

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

    15. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and policies, if adopted. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    16. Small Businesses, 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 Small Business 
Administration's (SBA) 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 32.5 million businesses.
    17. 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 2020, there were 
approximately 447,689 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.
    18. 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.''
    19. 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. Wireless Telecommunications Carriers (except Satellite) which 
encompasses business entities engaged in radiotelephone communications, 
is the closest industry with an SBA small business size standard 
applicable to these services. The SBA small size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates licensees in this industry 
can be considered small.
    20. Based on Commission data as of December 14, 2021, there are 
approximately 387,370 active PLMR licenses. Active PLMR licenses 
include 3,577 licenses in the 4.9 GHz band; 19,011 licenses in the 800 
MHz band; and 2,716 licenses in the 900 MHz band. Since the Commission 
does not collect data on the number of employees for licensees 
providing these services, at this time we are not able to estimate the 
number of licensees with active licenses that would qualify as small 
under the SBA's small business size standard. Nevertheless, the 
Commission believes that a substantial number of PLMR licensees are 
small entities.
    21. 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 small business size standard for this 
industry classifies businesses having 1,250 employees or less as small. 
U.S. Census Bureau data for 2017 show that there were 656 firms in this 
industry that operated for the entire year. Of this number, 624 firms 
had fewer than 250 employees. Thus, under the SBA size standard, the 
majority of firms in this industry can be considered small.
    22. 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 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2021 Universal 
Service Monitoring Report, as of December 31, 2020, there were 797 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 715 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.

[[Page 12640]]

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

    23. The Ninth Further Notice may impose new or additional reporting 
or recordkeeping and/or other compliance obligations on small entities, 
if adopted. Based on Commission proposals in the Ninth Further Notice, 
small and other entities are likely to be subject to the requirement 
that all lease arrangements between public safety and non-public safety 
entities in the 4.9 GHz band comply with our secondary markets rules, 
if our proposal is adopted. Small and other entities are also likely to 
be subject to compliance with our proposed requirement that all 
relevant public safety licensees must to consent to non-public safety 
operator use, if adopted.
    24. We also seek comment on what role, if any, public safety 
licensees should have in reviewing and approving lease agreements being 
negotiated by the Band Manager. In particular, we seek comment on the 
benefits and costs of different models of licensee involvement in the 
leasing process. Further, we seek comment whether the Commission should 
permit the Band Manager to limit the categories of entities eligible 
for leased access, or whether such limitations would be contrary to the 
Commission's goals of ensuring fair access and efficient use of 
spectrum. The resolution of each of these matters may result in 
additional compliance obligations for small and other entities 
operating in the 4.9 GHz band.
    25. In assessing the cost of compliance for small entities, at this 
time the Commission is not in a position to determine whether, if 
adopted, the proposals and matters upon which we seek comment will 
require small entities to hire professionals to comply and cannot 
quantify the cost of compliance with any of the potential rule changes 
that may be adopted. We expect the information we received in comments 
including where requested, cost and benefit analyses, to help the 
Commission identify and evaluate relevant compliance matters for small 
entities, including compliance costs and other burdens that may result 
from the proposals and inquiries we make in the Ninth Further Notice.

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

    26. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance 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.''
    27. Parties in the proceeding uniformly supported the goal of 
protecting current and future public safety licensees from interference 
but differ on how to define interference and which interference 
protection approach is most appropriate. Therefore, rather than 
imposing a standard on its own which could adversely impact small 
entities, in the Ninth Further Notice the Commission seeks further 
comment on specific criteria for protecting public safety licensees 
operating in the band from interference. Based on comments, we 
considered and seek comment on these alternative approaches, the 
threshold degradation approach of TIA-10, a propagation modeling 
approach used by part 90 frequency coordination for TDMA systems 
operating in the VHF band or contour overlap analysis as the basis for 
determining interference to public safety licensees operating in the 
4.9 GHz band. In each case, we seek comment on whether the interference 
protection criteria would strike the right balance between allowing 
robust use of the band while protecting critical public safety 
communications. Further, in the Ninth Further Notice we invite the 
submission of other approaches and proposals with cost and benefit 
analyses to establish protection for public safety licensees operating 
in the 4.9 GHz band.
    28. In the Ninth Further Notice, we also seek comment on ways to 
enable the Band Manager to facilitate the leasing of unused spectrum 
rights to non-public safety entities. We propose that all relevant 
public safety licensees would be required to consent to this 
arrangement but considered and seek comment on alternatives such as 
whether we should have exceptions to this general requirement and allow 
leasing in the absence of a given licensee's consent, for example after 
a period of non-responsiveness or if the licensee has conditioned its 
consent in a manner which violates our rules on compensation. Or 
whether we should have an exception for lack of consent if, we require 
certain licensees whose license area does not overlap with the lease 
area to consent.
    29. To safeguard small and other entities from discriminatory 
treatment, we seek comment in the Ninth Further Notice on what rules 
should be imposed on the Band Manager to ensure it administers leasing 
in a non-discriminatory manner. Our inquiry for non-discriminatory 
leasing rules explores specific lessees as well as the types of lessees 
and the nature of the operations they will conduct with the 4.9 GHz 
band. Finally, while we propose that the Band Manager fund itself from 
leasing revenue, to minimize the impact for small and other entities we 
considered and seek comment on whether there are any requirements we 
should put in place as to those fees, whether we should limit the fees 
charged by the Band Manager to public safety licensees and applicants, 
whether there are other funding sources for the Band Manager that our 
rules should contemplate, and how to approach revenues exceeding the 
Band Manager's costs for its services.
    30. The Commission is hopeful that the comments it receives will 
specifically address matters impacting small entities and include data 
and analyses relating to these matters. Further, while the Commission 
believes the rules that are eventually adopted in this proceeding 
should benefit small entities, whether public safety licensees seeking 
interference protection in the band or non-public safety entities 
seeking access to valuable spectrum, the Commission expects to more 
fully consider the economic impact and alternatives for small entities 
following the review of comments filed in response to the Ninth Further 
Notice. The Commission's evaluation of this information will shape the 
final alternatives it considers, the final conclusions it reaches, and 
any final actions it ultimately takes in this proceeding to minimize 
any significant economic impact that may occur on small entities.
    F. Federal Rules that May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    31. None.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2023-02611 Filed 2-27-23; 8:45 am]
BILLING CODE 6712-01-P