[Federal Register: December 23, 2002 (Volume 67, Number 246)]
[Proposed Rules]
[Page 78209-78215]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de02-24]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22, 24 and 27
[WT Docket No. 02-353; FCC 02-305]
Service Rules for Advanced Wireless Services
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document solicits comment on service rules for Advanced
Wireless Services in the 1710-1755 MHZ and 2110-2155 MHz bands,
including provisions for application, licensing, operating and
technical rules, and for competitive bidding. These frequency bands
have previously been used for a variety of Government and non-
Government services. Concurrently with this document, the Commission
adopted another decision, published elsewhere in this Federal Register,
allocating these frequency bands for fixed and mobile services to
provide for the introduction of new advanced wireless services to the
public. The Commission takes this action to eliminate barriers to and
facilitate the provision of new services to the public, and to
encourage optimum use of these frequencies.
DATES: Comments are due on or before February 7, 2003, and reply
comments are due on or before March 14, 2003. Public comments on the
information collections are due on or before February 28, 2003, and
comments by the Office of Management and Budget (OMB) are due on or
before April 28, 2003.
ADDRESSES: Office of the Secretary, Federal Communications Commission,
445 12th Street, SW., Washington, DC 20554. See SUPPLEMENTARY
INFORMATION for filing instructions.
FOR FURTHER INFORMATION CONTACT: John Spencer or Eli Johnson, Staff
Attorneys, 202-418-1310. For additional information concerning the
information collections contained in this document, contact Judith
Boley Herman at 202-418-0214, or via the Internet at jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WT Docket No. 02-353, FCC 02-305,
adopted November 7, 2002, and released November 22, 2002. The complete
text of the NPRM and Initial Regulatory Flexibility Analysis is
available on the Commission's Internet site, at http://
[[Page 78210]]
www.fcc.gov. It is also available for inspection and copying during
normal business hours in the FCC Reference Information Center,
Courtyard Level, 445 12th Street, SW., Washington, DC, and may be
purchased from the Commission's copy contractor, Qualex International,
Portals II, 445 12th Street, SW., CY-B4202, Washington, DC 20554
(telephone 202-863-2893). Comments may be filed using the Commission's
Electronic Comments Filing System (ECFS) or by filing paper copies.
1. In this NPRM, the Commission seeks comment on service rules for
Advanced Wireless Services (AWS) in the 1710-1755 MHz and 2110-2155 MHz
bands, including provisions for application, licensing, operating and
technical rules, and for competitive bidding. These frequency bands
have previously been used for a variety of Government and non-
governmental services. Concurrently with the NPRM, the Commission is
adopting a Report and Order (R&O) allocating these frequency bands for
fixed and mobile services so as to provide for the introduction of new
AWS to the public. The Commission, in taking these actions, emphasizes
its belief that in order to best serve the public, regulatory policy
should strive to eliminate barriers to and facilitate the provision of
new services. The 1710-1755 MHz and 2110-2155 MHz spectrum provides a
significant opportunity to achieve such service advances. The
Commission hopes that the licensing and service rules proposed in the
NPRM will benefit consumers by giving them the services and value that
they demand, and thereby provide the new business opportunities
necessary to support continued service enhancements by licensees.
2. In paragraphs 10 through 15 of the NPRM, the Commission proposes
a flexible use approach to spectrum allocation in these bands and
discusses its tentative approach to assigning licenses. The Commission
believes that its proposal to permit flexible use would eliminate
uncertainties about the outcome of the competitive bidding process and
promote the Commission's goals of assigning licenses expeditiously and
promoting the intensive and efficient use of this spectrum. With these
goals in mind, the Commission, in the NPRM, tentatively concludes that
the service rules for the 1710-1755 MHz and 2110-2155 MHz bands should
permit a licensee to use this spectrum for any use permitted by the
United States Table of Frequency Allocations contained in part 2 of the
Commission's rules. The NPRM solicits comments on a range of issues
relative to its flexible use framework and also on the Commission's
proposal to resolve mutually exclusive applications for these bands by
competitive bidding.
3. The Commission, in paragraphs 16 through 25 of the NPRM,
proposes to adopt a geographic area licensing scheme for the 1710-1755
MHz and 2110-2155 MHz bands, and seeks comment on appropriate
geographic licensing areas for these bands and how such a licensing
scheme can promote the objectives of 47 U.S.C. 309(j)(3), including
promotion of economic opportunities and competition by disseminating
licenses among a wide variety of applicants, including small
businesses, rural telephone companies, and minority- and women-owned
applicants. The NPRM, among other things, also seeks comment on
including the Gulf of Mexico in the Commission's licensing scheme for
these bands. Also, while the NPRM solicits comment from the public in
general on the Commission's proposals, as discussed in paragraph 25 of
the NPRM, the Commission specifically seeks comment from Indian Tribal
governments on the effect various geographic licensing options may have
on the deployment of service to tribal lands, as well as on other
issues raised in the NPRM.
4. In addition to seeking comment on the appropriate geographic
licensing area or areas to be used to license spectrum in the 1710-1755
MHz and 2110-2155 MHz bands, the NPRM, as addressed in paragraphs 26
through 32, seeks comment on the amount of spectrum that should be
included in each license, and the related issue of whether this
spectrum should be paired.
5. The NPRM next considers licensing and operating rules.
Paragraphs 36 through 38 of the NPRM proposes to allow licensees in the
1710-1755 MHz and 2110-2155 MHz bands to provide all allowable services
anywhere within their licensed area at any time, consistent with their
regulatory status. It also recommends that these applicants be able to
request common carrier status as well as non-common carrier status for
authorization in a single license, rather than to require the applicant
to choose between common carrier and non-common carrier services. The
NPRM further proposes that applicants and licensees in these bands be
required to indicate a regulatory status based on any services they
choose to provide. Lastly in this regard, the NPRM proposes that, if a
licensee operating in this spectrum changes the service or services it
offers, such that its regulatory status would change, that licensee
must notify the Commission of the change.
6. The NPRM, in paragraphs 39 through 42, discusses ownership
restrictions in the 1710-1755 MHz and 2110-2155 MHz bands. The NPRM
proposes to establish parity in foreign ownership reporting
requirements, but does not suggest a single, substantive standard for
compliance. For example, the Commission would not deny a license to an
applicant requesting authorization exclusively to provide services not
enumerated in section 310(b) of the Communications Act, solely because
its foreign ownership would disqualify it from receiving a license if
the applicant had applied for a license to provide the services
enumerated in section 310(b).
7. The NPRM further proposes not to adopt band-specific service
rules addressing spectrum aggregation limits applicable to the initial
licensing of the 1710-1755 MHz and 2110-2155 MHz bands, but seeks
comment on whether any such limits are necessary or appropriate. In
particular, the NPRM solicits comment on whether the Commission should
limit the amount of spectrum in these bands that any one entity (or
related entities) may acquire at auction in the same geographic area.
8. Paragraphs 43 through 45 of the NPRM discusses license term
renewal expectancy, and proposes that in the 1710-1755 MHz and 2110-
2155 MHz spectrum, the license term be 10 years. The NPRM further
proposes that a licensee in this spectrum applying for renewal receive
a preference or renewal expectancy if the applicant has provided
substantial service during its past license term and has complied with
the Communications Act and applicable Commission rules and policies.
9. In addition, the NPRM, in paragraphs 46 through 49, seeks
comment on whether licensees in the 1710-1755 MHz and 2110-2155 MHz
bands should be subject to any performance requirements, in addition to
a substantial service requirement, at license renewal. The NPRM, in
particular, questions whether the Commission should establish any
specific coverage requirements in this spectrum, or whether coverage
criteria should be adopted as one means, but not the exclusive means,
of meeting a substantial service requirement. The NPRM invites comment
on this and other issues related to possible performance requirements.
10. The NPRM, in paragraphs 50 and 51, asks whether the Commission
should allow licensees in the 1710-1755 MHz and 2110-2155 MHz bands to
partition their service areas and to disaggregate their spectrum. If
so, the NPRM proposes to apply section 27.15
[[Page 78211]]
of the Commission's rules to this spectrum. Section 27.15, among other
things, provides that licensees may apply to partition their licensed
geographic service areas or disaggregate their licensed spectrum at any
time following the grant of their license.
11. As indicated in paragraphs 13 and 14 and paragraph 52 of the
NPRM, even though licenses in the 1710-1755 MHz and 2110-2155 MHz bands
may be issued pursuant to one part of the Commission's rules, licensees
in these bands may be required to comply with rules contained in other
parts of the Commission's rules. The NPRM therefore solicits comment
generally on any provisions in existing, service-specific rules that
may require specific recognition or adjustment to comport with the
supervening application of another rule part, as well as any provisions
that may be necessary in this other rule part to fully describe the
scope of covered services and technologies.
12. The NPRM next looks at technical rules for the 1710-1755 MHz
and 2110-2155 MHz bands and the potential for interference between
licensees using the same spectrum in adjacent service areas, or
adjacent spectrum. Paragraphs 55 though 59 consider in-band
interference control. In that regard, the Commission, in the NPRM,
tentatively concludes that either a boundary limit or a coordination
method, when properly applied, can provide a satisfactory means of
controlling harmful interference or determining the interaction between
systems, although there may be reasons to prefer one or the other for
the spectrum under consideration. Commenters should provide an analysis
of the advantages and disadvantages of the boundary limit and
coordination approaches, or approaches that combine features of both.
The NPRM, in paragraphs 61 and 62 also invites comment on ways of
avoiding interference with incumbent licensees in the spectrum.
13. Paragraphs 63 and 64 of the NPRM solicit comment regarding out-
of-band and spurious emission limits. The NPRM cites the need to
consider interference protection for operations adjacent to the 1710-
1755 MHz and 2110-2155 MHz bands and tentatively concludes that the
Commission should develop out-of-band emission limits that can
accommodate each type of communications.
14. Next, the NPRM, in paragraphs 65 through 67, invites comment on
what limits for effective isotropic radiated power are necessary or
appropriate under either a coordination or a field strength limit
approach. The NPRM requests comment on a number of connected issues
such as if such limits are necessary, what should they be and the basis
for the suggested limits. The NPRM also seeks comment on the extent to
which the power limits that are established in this rulemaking should
affect the Commission's adoption of a paired or unpaired band
structure, and vice versa. If the Commission, as suggested in paragraph
66, decides to adopt a paired band architecture for this spectrum,
should it also allow the use of both base and mobile transmitters in
both bands. Finally, in this regard, the NPRM invites comment on the
technical ramifications of potential band segmentation plans, and on
techniques for dual use based on advance modulation techniques, antenna
technology, or other advanced methods for channelization.
15. The NPRM, in paragraphs 68 and 69, considers radiofrequency
(RF) radiation safety requirements and proposes to amend its rules to
provide a 1,000 watts effective radiated power threshold for fixed
operations in the 1710-1755 MHz and 2110-2155 MHz bands.
16. In paragraph 70 of the NPRM, the Commission requests comment on
applying existing rules related to equipment authorization, frequency
stability, antenna structures and air navigation, environmental
requirements, quiet zones, and disturbance of AM broadcast antenna
patterns to licensees in the 1710-1755 MHz and 2110-2155 bands,
including licensees who acquire their licenses through partitioning or
disaggregation. Further, the NPRM proposes, in paragraph 71, that until
agreements between the United States, Mexico, and Canada become
effective, to apply, as an interim requirement, for terrestrial
licensees operating in the 1710-1755 MHz and the 2110-2155 MHz bands
along the borders of the United States, Mexico, and Canada, the same
technical restrictions at the border that the Commission adopts for
operations between geographic service areas, to the extent they are not
in violation of current bilateral agreements and arrangements.
17. Finally, paragraphs 72 through 80 discuss competitive bidding
issues. For example, the NPRM proposes to conduct the auction of
initial licenses in the 1710-1755 MHz and 2110-2155 MHz bands in
conformity with the general competitive bidding rules set forth in part
1, subpart Q of the Commission's rules, and substantially consistent
with the bidding procedures that have been employed in previous
auctions. Thus, the NPRM solicits comment on whether any of the
Commission's part 1 rules or other auction procedures would be
inappropriate or should be modified for an auction of licenses in these
bands.
18. In paragraphs 74 through 80, the NPRM proposes to adopt a small
business size standard which defines a small business as an entity with
average annual gross revenues for the preceding three years not
exceeding $40 million, and a very small business as an entity with
average annual gross revenues for the preceding three years not
exceeding $15 million. The NPRM also proposes to provide small
businesses with a bidding credit of 15 percent, and very small
businesses with a bidding credit of 25 percent. The Commission seeks
comment on these size standards and on whether the proposed small
business provisions are sufficient to promote participation by
businesses owned by minorities and women, as well as rural telephone
companies. To the extent that commenters propose additional provisions
to ensure participation by minority-owned or women-owned businesses,
they should address how such provisions should be crafted to meet the
relevant standards of judicial review.
Administrative Matters
Ex Parte Rules
19. This is a permit-but-disclose notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed pursuant to the
Commission's rules. (See generally 47 CFR 1.1202, 1.1203, 1.1206.)
Comment Information
20. Pursuant to applicable procedures set forth in Sec. Sec. 1.415
and 1.419 of the Commission's rules, interested parties may file
comments on this NPRM on or before February 7, 2003, and reply comments
on or before March 14, 2003. Comments and reply comments should be
filed in WT Docket No. 02-353, and may be filed using the Commission's
Electronic Comment Filing System (ECFS) or by filing paper copies. All
relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding.
21. Comments filed through the ECFS can be sent as an electronic
file via the Internet to <http://www.fcc.gov/e-file/ecfs.html
. In completing the transmittal screen, commenters
should include their full name, Postal Service mailing address, and the
applicable docket number. Parties may also submit an electronic comment
by e-mail via the
[[Page 78212]]
Internet. To obtain filing instructions for e-mail comments, commenters
should send an e-mail to ecfs@fcc.gov, and should include the following
words in the body of the message: ``get form .'' A sample form and directions will be sent in
reply.
22. Parties who choose to file by paper must file an original and
four copies of each filing. If parties want each Commissioner to
receive a personal copy of their comments, they must file an original
plus nine copies. All filings must be sent to the Commission's
Secretary, Marlene H. Dortch, Office of the Secretary, Federal
Communications Commission, 445 12th Street, SW., Room TW-A325,
Washington, DC 20554. Furthermore, parties are requested to provide
courtesy copies for the following Commission staff: (1) John Spencer
and Eli Johnson, Policy Division, Wireless Telecommunications Bureau,
Federal Communications Commission, 445 12th Street, SW., Room. 3-C124,
Washington, DC 20554; and (2) Gary Michaels and Andrea Kelly, Auctions
and Industry Analysis Division, Wireless Telecommunications Bureau,
Federal Communications Commission, 445 12th Street, SW., Room. 4-A760,
Washington, DC 20554. One copy of each filing (together with a diskette
copy, as indicated below) should also be sent to the Commission's copy
contractor, Qualex International, Portals II, 445 12th Street, SW., CY-
B4202, Washington, DC 20554.
23. Parties who choose to file by paper should also submit their
comments on diskette. These diskettes should be attached to the
original paper filing submitted to the Office of the Secretary. Such a
submission should be on a 3.5 inch diskette formatted in an IBM
compatible format using MicrosoftTM Word 97 for Windows or
compatible software. The diskette should be accompanied by a cover
letter and should be submitted in ``read only'' mode. The diskette
should be clearly labeled with the commenter's name, proceeding, type
of pleading (comment or reply comment), date of submission, and the
name of the electronic file on the diskette. The label should also
include the following phrase ``Disk Copy--Not an Original.'' Each
diskette should contain only one party's pleadings, preferably in a
single electronic file. In addition, commenters should send diskette
copies to the Commission's copy contractor, Qualex International,
Portals II, 445 12th Street, SW., CY-B4202, Washington, DC 20554.
24. The public may view the documents filed in this proceeding
during regular business hours in the FCC Reference Information Center,
Federal Communications Commission, 445 12th Street, SW., Room CY-A257,
Washington, DC 20554, and on the Commission's Internet Home Page:
<http://www.fcc.gov. Copies of comments and reply comments
are also available through the Commission's duplicating contractor:
Qualex International, Portals II, 445 12th Street, SW., CY-B4202,
Washington, DC 20554 (telephone 202-863-2893). Accessible formats
(computer diskettes, large print, audio recording and Braille) are
available to persons with disabilities by contacting Brian Millin, of
the Consumer & Governmental Affairs Bureau, at (202) 418-7426, TTY
(202) 418-7365, or at bmillin@fcc.gov.
Paperwork Reduction Act
25. This NPRM may contain proposed information collections. As part
of our continuing effort to reduce paperwork burdens, we invite the
general public and the Office of Management and Budget (OMB) to take
this opportunity to comment on the information collections contained in
this NPRM, as required by the Paperwork Reduction Act of 1995. Comments
should address: (a) Whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
26. Written comments by the public and agencies on the proposed
information collections are due February 14, 2003. Written comments by
the OMB on the proposed and/or modified information collections are due
on or before April 21, 2003. In addition to filing comments with the
Secretary, a copy of any comments on the information collections
contained herein should be submitted to Judith Boley Herman, Federal
Communications Commission, 445 12th Street, SW., Room 1-C804,
Washington, DC 20554, or via the Internet to jboley@fcc.gov, and to Kim
A. Johnson, Office of Information and Regulatory Affairs (OIRA), Office
of Management and Budget (OMB), Docket Library, Room 10236, New
Executive Office Building (NEOB), 725 17th Street, NW., Washington, DC
20503 or via the Internet at Kim_A._Johnson@omb.eop.gov.
OMB Approval Number: 3060-XXXX.
Title: Service Rules for Advanced Wireless Services in the 1.7 GHz
and 2.1 GHz Bands.
Form No.: FCC Forms 601, 602, 603, 604, 605.
Type of Review: New collection.
Respondents: Business or other for profit, federal government,
state, local or tribal government.
Number of Respondents: 200.
Estimated Time Per Response: 30 minutes to 10 hours (The reporting
and coordination are all one time or occasional burdens that will only
occur under certain conditions.)
Frequency of Response: On occasion and one-time reporting
requirements, third party disclosure requirement, recordkeeping
requirement.
Total Annual Cost Burden: N/A.
Total Annual Burden: 830 hours (approximate total for three year
term of OMB approval).
Needs and Uses: The various information reporting and verification
requirements, and the prospective coordination requirement, if
ultimately adopted, will be used by the Commission to verify licensee
compliance with Commission rules and regulations, and to ensure that
licensees continue to fulfill their statutory responsibilities in
accordance with the Communications Act of 1934. Such information has
been used in the past and will continue to be used to minimize
interference, verify that applicants are legally and technically
qualified to hold licenses, and to determine compliance with Commission
Rules.
Initial Regulatory Flexibility Act Analysis
27. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this Notice of Proposed Rulemaking
(NPRM). This is a summary of that IRFA. The complete text of the IRFA
may be found in Appendix B of the full NPRM. Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadline for comments provided in
paragraph 87 of the full text of the NPRM. The Commission will send a
copy of the NPRM, including the full text of the IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA).
[[Page 78213]]
A. Need for, and Objectives of, the Proposed Rules
28. The NPRM seeks comment on service rules for Advanced Wireless
Services (AWS) in the 1710-1755 MHz and 2110-2155 MHz bands, including
provisions for application, licensing, technical and operating rules,
and for competitive bidding. These frequency bands have previously been
used for a variety of Government and non-government services. The
Commission's goal in proposing the licensing and service rules detailed
in the NPRM is to enable service providers to put this spectrum to its
highest value use with minimal transaction costs. The Commission's
proposals for service rules allow for flexibility and permit this
spectrum to be used for any purpose consistent with its allocation,
including third generation (3G) and other advanced wireless services.
B. Legal Basis
29. The proposed action is authorized pursuant to sections 1, 2,
4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332
and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i),
157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332,
333.
C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
30. 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, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small government
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 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. Nationwide,
there are 4.44 million small business firms, according to SBA reporting
data.
31. A small organization is generally ``any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.'' Nationwide, as of 1992, there were
approximately 275,801 small organizations. Last, the definition of
``small governmental jurisdiction'' is one with populations of fewer
than 50,000. There are 85,006 governmental jurisdictions in the nation.
This number includes such entities as states, counties, cities, utility
districts and school districts. There are no figures available on what
portion of this number have populations of fewer than 50,000. However,
this number includes 38,978 counties, cities and towns, and of those,
37,556, or ninety-six percent, have populations of fewer than 50,000.
The Census Bureau estimates that this ratio is approximately accurate
for all government entities. Thus, of the 85,006 governmental entities,
we estimate that ninety-six percent, or about 81,600, are small
entities that may be affected by our rules.
32. The proposals in the NPRM affect applicants who wish to provide
service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission
does not know precisely the type of service that a licensee in these
bands might seek to provide. Nonetheless, the Commission anticipates
that the services that will be deployed in these bands may have capital
requirements comparable to those in the broadband Personal
Communications Service (PCS), and that the licensees in these bands
will be presented with issues and costs similar to those presented to
broadband PCS licensees. Therefore, the NPRM proposes to adopt the same
small business size standards here that the Commission adopted for the
broadband PCS service. In particular, the NPRM proposes to define a
``small business'' as an entity with average annual gross revenues for
the preceding three years not exceeding $40 million, and a ``very small
business'' as an entity with average annual gross revenues for the
preceding three years not exceeding $15 million. The NPRM also proposes
to provide small businesses with a bidding credit of 15 percent and
very small businesses with a bidding credit of 25 percent. The NPRM
seeks comment on the use of these business size standards and also on
the associated bidding credits for small business applicants to be
licensed in the 1710-1755 MHz and 2110-2155 MHz bands, with particular
focus on the appropriate definitions of small and very small businesses
as they relate to the size of the geographic area to be covered and the
spectrum allocated to each licensee.
33. The Commission has not yet determined how many licenses will be
awarded in the 1710-1755 MHz and 2110-2155 MHz bands. Moreover, the
Commission does not yet know how many applicants or licensees in these
bands will be small entities. Thus, the Commission assumes, for
purposes of this IRFA, that all prospective licensees are small
entities as that term is defined by the SBA or by our proposed small
business definitions for these bands. The Commission invites comment on
this analysis.
34. Although the Commission does not know for certain which
entities are likely to apply for these frequencies, we note that the
1710-1755 MHz and 2110-2155 MHz bands are comparable to cellular
service and personal communications service.
35. Wireless Telephone Including Cellular, Personal Communications
Service (PCS) and SMR Telephony Carriers. The Commission's most recent
data, as reported in Table 5.3 of Trends in Telephone Service,
estimates that there are 858 wireless telephone carriers and that 291
of these carriers in combination with their affiliates have 1,500 or
fewer employees. In addition, the SBA has developed size standards for
wireless small businesses within the two separate Economic Census
categories of: (1) Paging and (2) Cellular and Other Wireless
Telecommunications. For both of those categories, the SBA considers a
business to be small if it has 1,500 or fewer employees. According to
the Commission's most recent Trends in Telephone Service data, 1,761
companies reported that they were engaged in the provision of wireless
service. Of these 1,761 companies, an estimated 1,175 have 1,500 or
fewer employees and 586 have more than 1,500 employees. Consequently,
the Commission estimates that most wireless service providers are small
entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
36. The NPRM proposes a number of rule changes that will affect
reporting, recordkeeping and other compliance requirements. The
Commission will provide time for public comment on and seek Office of
Management and Budget approval for any proposals that entail Paperwork
Reduction Act burdens.
37. The NPRM first proposes flexible use of the bands under the
regulatory framework contained in part 27 of the Commission's rules, or
alternatively seeks comment on governing the services in these bands by
the part 24 or part 22 rules, or by a newly created rule part.
(Paragraphs 13-14 of the NPRM.) Also, as discussed in paragraphs 16-18,
the NPRM proposes a geographic area licensing scheme for the 1710-1755
MHz and 2110-2155 MHz bands. The transfer of the 1710-1755 MHz band
from Federal Government use to non-Government commercial use is subject
to the provisions of the National Telecommunications and Information
[[Page 78214]]
Administration Organization Act, as amended by the Strom Thurmond
National Defense Authorization Act for Fiscal Year 1999 (NDAA-99).
NDAA-99 requires new non-Governmental licensees to reimburse Federal
users for their relocation costs. (Paragraphs 33-34 of the NPRM.) NDAA-
99 also grants the Federal user a limited reclamation right.
38. Entities interested in acquiring initial licenses to use
spectrum in the 1710-1755 MHz and 2110-2155 MHz bands will be required
to file using the Universal Licensing System, as discussed in paragraph
52 of the NPRM. As in other services, the licensees in these bands
would be allowed to provide all allowable services anywhere within
their licensed area. The Commission's current mobile service license
application requires an applicant for mobile services to indicate
whether the service it intends to offer will be Commercial Mobile Radio
Service (CMRS), Private Mobile Radio Service (PMRS), or both, since
service offerings may bear on eligibility and other statutory and
regulatory requirements. The NPRM also proposes to permit applicants to
request common carrier status as well as non-common carrier status for
authorization in a single license, rather than to require the applicant
to choose between common carrier and non-common services. These
proposed regulatory status obligations are discussed at paragraphs 36-
38 of the NPRM.
39. Also, as stated in paragraph 39 of the NPRM, sections 310(a)
and 310(b) of the Communications Act, as modified by the
Telecommunications Act of 1996, impose foreign ownership and
citizenship requirements that restrict the issuance of licenses to
certain applicants. An applicant requesting authorization for other
than broadcast, common carrier, or aeronautical en route or fixed
services would be subject to section 310(a), but not to the additional
prohibitions of section 310(b). An applicant requesting authorization
for these particular services would be subject to both sections 310(a)
and 310(b). The NPRM provides, however, that common carriers and non-
common carriers filing an application should not be subject to varied
reporting obligations. The NPRM does not propose a single, substantive
standard for compliance. For example, the NPRM states that the
Commission would not deny a license to an applicant requesting
authorization exclusively to provide services not enumerated in section
310(b), solely because its foreign ownership would disqualify it from
receiving a license if the applicant had applied for a license to
provide the services enumerated in section 310(b).
40. In paragraphs 46-49 of the NPRM, the Commission seeks comment
on whether licensees in the 1710-1755 MHz and 2110-2155 MHz bands
should be subject to any performance requirements in addition to a
substantial service requirement at license renewal. The NPRM notes that
in some services the Commission has imposed minimum coverage
requirements on licensees to ensure that spectrum is used effectively
and service is implemented promptly. The NPRM seeks comment on whether
the Commission should establish any specific coverage requirements in
the 1710-1755 MHz and 2110-2155 MHz bands, or whether coverage criteria
should be adopted as one means, but not the exclusive means, of meeting
a substantial service requirement. The NPRM also seeks comment on
whether licensees should be subject to interim performance requirements
prior to the end of the license term.
41. In paragraphs 50-51 of the NPRM, the Commission seeks comment
on allowing licensees in the 1710-1755 MHz and 2110-2155 MHz bands to
partition their service areas and to disaggregate their spectrum. If
the Commission permits partitioning, then the partitioning licensee
would have to include with its request a description of the partitioned
service area and a calculation of the population of the partitioned
service area and the licensed geographic service area.
42. In paragraphs 54-71, the NPRM seeks comment on a number of
technical issues and licensing obligations. The NPRM requests
information on how best to control in-band and out-of-band
interference, appropriate power limits, RF safety limits, and Canadian
and Mexican coordination.
43. The Commission requests comment on how all of these
requirements may be modified to reduce the burden on small entities and
still meet the objectives of the proceeding.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
44. The RFA requires an agency to describe any significant
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 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 small
entities.
45. The NPRM solicits comment on a number of proposals and
alternatives regarding the reallocation of, and service rules for, the
1710-1755 MHz and 2110-2155 MHz bands. The NPRM seeks to adopt rules
that will reduce regulatory burdens, promote innovate services and
encourage flexible use of this spectrum. It opens up economic
opportunities to a variety of spectrum users, including small
businesses. The Commission considers various proposals and alternatives
partly because we seek to minimize, to the extent possible, the
economic impact on small businesses.
46. Paragraph 74 of the NPRM takes particular note of the
Commission's legislative obligation to promote ``economic opportunity
and competition by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women.'' In recognition of this
obligation and as discussed above, the NPRM first proposes to establish
size standards for small and very small businesses based on the
definitions used for the broadband PCS service. The NPRM also proposes
to provide small businesses with a bidding credit of 15 percent and
very small businesses with a bidding credit of 25 percent.
47. As indicated in paragraph 79 of the NPRM, the Commission
believes that the small business size standards and corresponding
bidding credits proposed in the NPRM would provide a variety of
businesses with opportunities to participate in the auction of licenses
for these bands, and afford licensees substantial flexibility for the
provision of services with varying capital costs. However, the
Commission recognizes that the capital costs of operational facilities
in the 1710-1755 MHz and 2110-2155 MHz bands may vary widely. Thus, the
NPRM particularly seeks comment on whether there may be any distinctive
characteristics to the AWS service or these bands that suggest that the
adoption of small business size definitions and the use of bidding
credits would be inappropriate in this instance. Further, in paragraph
80, the Commission seeks comment on whether the small business
provisions proposed in the NPRM are sufficient to promote participation
by businesses owned by minorities and women, as well as rural telephone
companies and small entities.
[[Page 78215]]
48. The NPRM invites comment on various alternative licensing and
service rules and on a number of issues relating to how the Commission
should craft service rules for this spectrum, that could have an impact
on small entities. For example, the Commission seeks comment on the
size of spectrum blocks for these frequencies and how the size of
spectrum blocks would impact small entities. (Paragraphs 26-32 of the
NPRM.) The NPRM also proposes a geographic area approach to service
areas, as opposed to a station-defined licensing approach, and seeks
comment on the appropriate size of service areas. Specifically, the
NPRM asks for comment on whether smaller geographic areas would better
serve the needs of small entities. As explained in paragraph 20 of the
NPRM, the Commission's approach to determining optimum geographic area
license size(s) attempts to accommodate the likely range of applicant
desires by balancing efficiency with the policy goal of disseminating
licenses among a wide variety of applicants. The NPRM notes that the
Commission wishes to foster service to rural areas and tribal lands,
and to promote investment in and rapid deployment of new technologies
and services. The NPRM also notes that small license areas may favor
smaller entities with regional business plans and no interest in
providing large-area service. In summary, the NPRM seeks comment on the
advantages and disadvantages to small entities of a large geographic
licensing scheme over a small one in terms of impact on rural and small
entities. (Paragraphs 19-25 of the NPRM.)
49. The NPRM seeks comment on permitting geographic partitioning
and spectrum disaggregation. The NPRM notes that geographic
partitioning and spectrum disaggregation is a tool utilized by the
Commission to promote efficient spectrum use and economic opportunity
for a wide variety of applicants, including small business, rural
telephone, minority-owned, and women-owned applicants. (Paragraphs 50-
51 of the NPRM.) The NPRM seeks comment on the benefits and costs of
partitioning and disaggregation, and whether it promotes the public
interest. Finally, the NPRM, in paragraphs 40-42, seeks comment on
whether any band-specific limits on spectrum aggregation are necessary
or appropriate in this case, and how this would impact the marketplace,
including small entities.
50. The regulatory burdens proposed in the NPRM, such as filing
applications on appropriate forms, appear necessary in order to ensure
that the public receives the benefits of innovative new services, or
enhanced existing services, in a prompt and efficient manner. The
Commission will continue to examine alternatives in the future with the
objectives of eliminating unnecessary regulations and minimizing any
significant economic impact on small entities. The Commission invites
comment on any additional significant alternatives parties believe
should be considered and on how the approach outlined in the NPRM will
impact small entities, including small businesses and small government
entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
51. None.
Ordering Clauses
52. Therefore, pursuant to sections 1, 2, 4(i), 7, 10, 201, 214,
301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201,
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this
Notice of Proposed Rulemaking is adopted.
53. Additionally, notice is given of the proposed regulatory
changes described in the NPRM, and that comment is sought on these
proposals.
54. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of the NPRM, including
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-32213 Filed 12-20-02; 8:45 am]
BILLING CODE 6712-01-P