[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]
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