[Federal Register: December 27, 2004 (Volume 69, Number 247)]
[Proposed Rules]
[Page 77560-77568]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de04-19]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 2, 20, 21, 22, 24, 25, 27, 74, 78, 80, 87, 90, 95,
97, and 101
[WT Docket No. 00-230; FCC 04-167]
Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on additional
policies that could facilitate the development of advanced
technologies, such as cognitive radio and ``opportunistic use''
devices. In particular, we request comment on whether additional
revisions should be made to the spectrum leasing and private commons
regulatory models, or whether other types of arrangements can better
enable more users to gain spectrum access.
DATES: Comments by the public on the proposals set forth in the Second
Further Notice of Proposed Rulemaking (Second Further Notice) are due
January 18, 2005. Reply comments are due February 17, 2005.
FOR FURTHER INFORMATION CONTACT: Paul Murray, Wireless
Telecommunications Bureau, at (202) 418-7240, or via the Internet at
Paul.Murray@fcc.gov; for additional information concerning the
information collections contained in this document, contact Judith-B.
Herman at (202) 418-0214, or via the Internet at
Judith.B-Herman@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Further Notice portion of the Commission's Second Report and Order,
Order on Reconsideration, and Second Further Notice of Proposed
Rulemaking, FCC 04-167, in WT Docket No. 00-230, adopted on July 8,
2004, and released on September 2, 2004. Contemporaneous with this
document, the Commission issues a Second Report and Order and Order on
Reconsideration (published elsewhere in this publication). The full
text of this document is available for inspection and copying during
normal business hours in the FCC Reference Information Center, 445 12th
Street, SW., Washington, DC 20554. The complete text may be purchased
from the FCC's copy contractor, Qualex International, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554. The full text may also be
downloaded at: http://www.fcc.gov. Alternative formats are available to
persons with disabilities by contacting Brian Millin at (202) 418-7426
or TTY (202) 418-7365 or at Brian.Millin@fcc.gov.
Synopsis of the Second Further Notice
I. Introduction and Background
1. In the Second Report and Order, which is set forth elsewhere in
this publication, we provide examples of the ways in which advanced
technologies, such as opportunistic devices, may be utilized within the
context of current spectrum leasing policies. We observe that these do
not comprise an exhaustive list of all permissible ways in which these
advanced technologies may be utilized, but instead help illustrate the
relevant regulatory issues before the Commission. We recognize that,
due to the transaction costs associated with leasing or other market
factors, licensees and other parties may wish to utilize other types of
arrangements involving opportunistic use of licensed spectrum. To that
end, we adopt a ``private commons'' option distinct from either
spectrum leases or other existing arrangements.
II. Second Further Notice of Proposed Rulemaking
2. Because there may be many arrangements that would involve
opportunistic use of spectrum and that would be consistent with
Commission rules, we seek comment on additional ways in which licensees
and spectrum lessees may enter into arrangements in which other users
may employ advanced technologies to opportunistically use licensed
spectrum. We wish to build on the examples listed in the Second Report
and Order to provide licensees, spectrum lessees, and other parties
with greater certainty as to the types of opportunistic use
arrangements that would be permitted. To that end, we encourage
commenters to describe additional means to increase spectrum access,
how they might fit within the framework of the Commission's rules, or
the extent to which we should consider revising our rules so as to
accommodate these uses.
3. With regard to spectrum access through spectrum leasing
arrangements, we seek comment on additional ways in which licensees and
spectrum lessees may utilize advanced technologies, such as
opportunistic devices, within the context of the Commission's spectrum
leasing policies and rules. What types of uses have not been addressed
by the Commission but nonetheless merit consideration due, for example,
to an ability to enhance access? We encourage commenters to be specific
as to the nature of the relationship between the licensees and spectrum
lessee(s) in such arrangements, especially with regard to their
responsibility for compliance with Commission rules.
4. With regard to spectrum access through private commons, we seek
comment on the potential for this approach to improve access as well as
the regulatory distinctions that are necessary to make this an
effective regulatory model. Does the private commons established in the
Second Report and Order sufficiently accommodate the wide variety of
ways in which licensees (and spectrum lessees) and other users may wish
to enter cooperative arrangements that employ ``smart'' or
``opportunistic'' devices? Should the private commons be modified or
expanded so as to better accommodate the variety of arrangements that
may be desired by the market? For example, should we adopt an approach
to private commons that would allow intermediaries to facilitate
transactions with users, design and set up communications networks for
users or provide value-added services or applications? Are there
alternative regulatory constructs that might help promote such
arrangements? If so, how should these arrangements be structured, both
in terms of licensees' reporting requirements before the Commission and
the nature of the licensee's relationship with opportunistic users?
5. In addition, we seek comment on the technical parameters
necessary to distinguish private commons from spectrum leasing
arrangements or other arrangements. For example, at what point is a
licensee with no physical infrastructure to use the spectrum engaged in
providing a private commons to users, as opposed to a spectrum leasing
arrangement with spectrum lessees? To what extent should a licensee (or
spectrum lessee) with a private commons be permitted to grant access to
another spectrum licensee (or spectrum lessee)? Should a licensee with
an existing physical network and subscribers (e.g., a CMRS provider) be
permitted to be a subscriber in another licensee's private commons? If
so, what would distinguish such use from a spectrum leasing
arrangement?
6. We seek comment on the examples of private commons set forth in
the Second Report and Order as well as other types of private commons
arrangements. We also stated in the Second Report and Order that the
licensee or spectrum lessee establishing and managing a private commons
must retain both de facto control of the use
[[Page 77561]]
of the spectrum within the private commons and direct responsibility
for the users' compliance with the Commission's rules. Are there any
additional policies or requirements that are necessary to clarify the
nature of this control or that could help ensure compliance? What is an
efficient way to enforce users' compliance with the rules? For
instance, would it be appropriate to require users to employ smart
devices that include certain technologies (e.g., a microchip set) that
would enable private commons managers to shut down any devices found to
be causing harmful interference?
7. Finally, we seek comment on the appropriate notification process
for licensees or de facto transfer lessees that choose to offer a
private commons. In the Second Report and Order above, we stated that a
licensee or spectrum lessee managing the private commons must notify
the Commission prior to permitting users to begin operating within the
private commons. We propose here to give the licensee or spectrum
lessee the option of notifying the Commission directly or, in the
alternative, providing a URL that posts the terms and conditions. In
the event these terms and conditions change, the licensee would have to
make this information available on its website or, if this is not
possible, by providing this information directly to the Commission. Is
this an efficient notification procedure, and are there alternative
means by which the Commission could collect this information in a less
burdensome manner?
III. Procedural Matters
A. Initial Regulatory Flexibility Analysis Regarding the Second Further
Notice
8. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), see 5 U.S.C. 603, the Commission has prepared this
present 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 this Second Further Notice of
Proposed Rulemaking (Second 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 on the Second
Further Notice. The Commission will send a copy of the Second Further
Notice, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration (SBA). In addition, the Second Further
Notice and IRFA (or summaries thereof) will be published in the Federal
Register.
1. Need for, and Objectives of, the Proposed Rules
9. In the Second Report and Order, we adopt changes that further
facilitate the leasing of spectrum usage rights and enhancing the
functioning of the secondary spectrum marketplace generally. However,
we believe that there may be additional measures that we might take to
improve efficiency and promote access to a secondary spectrum market in
order to ensure the greatest benefit to spectrum users and consumers.
Thus, in the Second Further Notice, we seek comment on evaluating
additional policies that could facilitate the development of advanced
technologies through secondary market arrangements, such as spectrum
leasing and private commons, and obtaining further clarification
regarding the private commons options. We discuss the potential impact
of these on small entities in the paragraphs that follow.
2. Legal Basis
10. The potential actions on which comment is sought in this Second
Further Notice would be authorized under sections 1, 4(i), and 303(r)
of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i),
and 303(r).
3. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
11. The RFA directs agencies to provide a description of, and,
where feasible, an estimate of, the number of small entities that may
be affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A ``small business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the Small Business
Administration (SBA).
12. In the following paragraphs, we further describe and estimate
the number of small entity licensees that may be affected by the rules
we adopt in the Second Further Notice. Since this rulemaking proceeding
applies to multiple services, we will analyze the number of small
entities affected on a service-by-service basis.
13. As adopted, the Second Report and Order will create new
opportunities and obligations for Wireless Radio Service's licensees
and other entities that may lease spectrum usage rights from these
licensees. When identifying small entities that could be affected by
our new rules, we provide information describing auctions results,
including the number of small entities that were winning bidders. We
note, however, that the number of winning bidders that qualify as small
businesses at the close of an auction does not necessarily reflect the
total number of small entities currently in a particular service. The
Commission does not generally require that applicants provide business
size information, except in the context of an assignment or transfer of
control application where unjust enrichment issues are implicated.
Consequently, to assist the Commission in analyzing the total number of
potentially affected small entities, we requested commenters to
estimate the number of small entities that may be affected by any rule
changes resulting from this Second Further Notice.
14. In the Second Further Notice, we seek comment on possible
further refinements to our existing policies and rules for spectrum
leasing arrangements and for private commons arrangements. If any
revisions were adopted, such revisions potentially could affect small
entity licensees holding licenses in the Wireless Radio Services
identified below.
15. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the category ``Cellular and Other
Wireless Telecommunications.'' Under that SBA category, a business is
small if it has 1,500 or fewer employees. According to the Bureau of
the Census, only twelve firms out of a total of 977 cellular and other
wireless telecommunications firms that operated for the entire year in
1997 had 1,000 or more employees. Therefore, even if all twelve of
these firms were cellular telephone companies, nearly all cellular
carriers are small businesses under the SBA's definition.
16. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
definition of small entities specifically applicable to such incumbent
220 MHz Phase I licensees. To estimate the number of such
[[Page 77562]]
licensees that are small businesses, we apply the small business size
standard under the SBA rules applicable to ``Cellular and Other
Wireless Telecommunications'' companies. This category provides that a
small business is a wireless company employing no more than 1,500
persons. According to the Census Bureau data for 1997, only twelve
firms out of a total of 977 such firms that operated for the entire
year in 1997, had 1,000 or more employees. If this general ratio
continues in the context of Phase I 220 MHz licensees, the Commission
estimates that nearly all such licensees are small businesses under the
SBA's small business standard.
17. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
subject to spectrum auctions. We adopted a small business size standard
for defining ``small'' and ``very small'' businesses for purposes of
determining their eligibility for special provisions such as bidding
credits and installment payments. This small business standard
indicates that a ``small business'' is an entity that, together with
its affiliates and controlling principals, has average gross revenues
not exceeding $15 million for the preceding three years. A ``very small
business'' is defined as an entity that, together with its affiliates
and controlling principals, has average gross revenues that do not
exceed $3 million for the preceding three years. The SBA has approved
these small size standards. Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998. In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: Three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold. Thirty-nine small businesses won 373
licenses in the first 220 MHz auction. A second auction included 225
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses. A third auction
included four licenses: 2 BEA licenses and 2 EAG licenses in the 220
MHz Service. No small or very small business won any of these licenses.
18. Lower 700 MHz Band Licenses. We adopted criteria for defining
three groups of small businesses for purposes of determining their
eligibility for special provisions such as bidding credits. We have
defined a small business as an entity that, together with its
affiliates and controlling principals, has average gross revenues not
exceeding $40 million for the preceding three years. A very small
business is defined as an entity that, together with its affiliates and
controlling principals, has average gross revenues that are not more
than $15 million for the preceding three years. Additionally, the lower
700 MHz Service has a third category of small business status that may
be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The
third category is entrepreneur, which is defined as an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $3 million for the preceding
three years. The SBA has approved these small size standards. An
auction of 740 licenses (one license in each of the 734 MSAs/RSAs and
one license in each of the six Economic Area Groupings (EAGs))
commenced on August 27, 2002, and closed on September 18, 2002. Of the
740 licenses available for auction, 484 licenses were sold to 102
winning bidders. Seventy-two of the winning bidders claimed small
business, very small business or entrepreneur status and won a total of
329 licenses. A second auction commenced on May 28, 2003, and closed on
June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 CMA
licenses. Seventeen winning bidders claimed small or very small
business status and won sixty licenses, and nine winning bidders
claimed entrepreneur status and won 154 licenses.
19. Upper 700 MHz Band Licenses. The Commission released a Report
and Order, authorizing service in the upper 700 MHz band. This auction,
previously scheduled for January 13, 2003, has been postponed.
20. Paging. We adopted a size standard for ``small businesses'' for
purposes of determining their eligibility for special provisions such
as bidding credits and installment payments. A small business is an
entity that, together with its affiliates and controlling principals,
has average gross revenues not exceeding $15 million for the preceding
three years. The SBA has approved this definition. An auction of
Metropolitan Economic Area (MEA) licenses commenced on February 24,
2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985
were sold. Fifty-seven companies claiming small business status won 440
licenses. An auction of Metropolitan Economic Area (MEA) and Economic
Area (EA) licenses commenced on October 30, 2001, and closed on
December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold.
132 companies claiming small business status purchased 3,724 licenses.
A third auction, consisting of 8,874 licenses in each of 175 EAs and
1,328 licenses in all but three of the 51 MEAs commenced on May 13,
2003, and closed on May 28, 2003. Seventy-seven bidders claiming small
or very small business status won 2,093 licenses. Currently, there are
approximately 24,000 Private Paging site-specific licenses and 74,000
Common Carrier Paging licenses. According to one 2002 study, 608
private and common carriers reported that they were engaged in the
provision of either paging or ``other mobile'' services. Of these, we
estimate that 589 are small, under the SBA-approved small business size
standard. We estimate that the majority of private and common carrier
paging providers would qualify as small entities under the SBA
definition.
21. Broadband Personal Communications Service (PCS). The broadband
PCS spectrum is divided into six frequency blocks designated A through
F, and the Commission has held auctions for each block. The Commission
has created a small business size standard for Blocks C and F as an
entity that has average gross revenues of less than $40 million in the
three previous calendar years. For Block F, an additional small
business size standard for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. These small business size standards, in the context of
broadband PCS auctions, have been approved by the SBA. No small
businesses within the SBA-approved small business size standards bid
successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 ``small'' and ``very small'' business bidders won
approximately 40 percent of the 1,479 licenses for Blocks D, E, and F.
On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block
licenses; there were 113 small business winning bidders.
22. Narrowband PCS. The Commission held an auction for Narrowband
PCS licenses that commenced on July 25, 1994, and closed on July 29,
1994. A second commenced on October 26, 1994 and closed on November 8,
1994. For purposes of the first two Narrowband PCS auctions, ``small
businesses'' were entities with average gross revenues for the prior
three calendar years of $40 million or less. Through these auctions,
the Commission awarded a total of forty-one licenses, 11 of which were
[[Page 77563]]
obtained by four small businesses. To ensure meaningful participation
by small business entities in future auctions, the Commission adopted a
two-tiered small business size standard. A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
$40 million. A ``very small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $15 million. The SBA has
approved these small business size standards. A third auction commenced
on October 3, 2001 and closed on October 16, 2001. Here, five bidders
won 317 (MTA and nationwide) licenses. Three of these claimed status as
a small or very small entity and won 311 licenses.
23. Specialized Mobile Radio (SMR). The Commission awards ``small
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR)
geographic area licenses in the 800 MHz and 900 MHz bands to firms that
had revenues of no more than $15 million in each of the three previous
calendar years. The Commission awards ``very small entity'' bidding
credits to firms that had revenues of no more than $3 million in each
of the three previous calendar years. The SBA has approved these small
business size standards for the 900 MHz Service. The Commission has
held auctions for geographic area licenses in the 800 MHz and 900 MHz
bands. The 900 MHz SMR auction began on December 5, 1995, and closed on
April 15, 1996. Sixty bidders claiming that they qualified as small
businesses under the $15 million size standard won 263 geographic area
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper
200 channels began on October 28, 1997, and was completed on December
8, 1997. Ten bidders claiming that they qualified as small businesses
under the $15 million size standard won 38 geographic area licenses for
the upper 200 channels in the 800 MHz SMR band. A second auction for
the 800 MHz band was held on January 10, 2002 and closed on January 17,
2002 and included 23 BEA licenses. One bidder claiming small business
status won five licenses.
24. The auction of the 1,050 800 MHz SMR geographic area licenses
for the General Category channels began on August 16, 2000, and was
completed on September 1, 2000. Eleven bidders won 108 geographic area
licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard. In
an auction completed on December 5, 2000, a total of 2,800 Economic
Area licenses in the lower 80 channels of the 800 MHz SMR service were
sold. Of the 22 winning bidders, 19 claimed ``small business'' status
and won 129 licenses. Thus, combining all three auctions, 40 winning
bidders for geographic licenses in the 800 MHz SMR band claimed status
as small business. In addition, there are numerous incumbent site-by-
site SMR licensees and licensees with extended implementation
authorizations in the 800 and 900 MHz bands. We do not know how many
firms provide 800 MHz or 900 MHz geographic area SMR pursuant to
extended implementation authorizations, nor how many of these providers
have annual revenues of no more than $15 million. One firm has over $15
million in revenues. We assume, for purposes of this analysis, that all
of the remaining existing extended implementation authorizations are
held by small entities, as that small business size standard is
established by the SBA.
25. Private Land Mobile Radio (PLMR). PLMR systems serve an
essential role in a range of industrial, business, land transportation,
and public safety activities. These radios are used by companies of all
sizes operating in all U.S. business categories, and are often used in
support of the licensee's primary (non-telecommunications) business
operations. For the purpose of determining whether a licensee of a PLMR
system is a small business as defined by the SBA, we could use the
definition for ``Cellular and Other Wireless Telecommunications.'' This
definition provides that a small entity is any such entity employing no
more than 1,500 persons. The commission does not require PLMR licensees
to disclose information about number of employees, so the Commission
does not have information that could be used to determine how many PLMR
licensees constitute small entities under this definition. Moreover,
because PMLR licensees generally are not in the business of providing
cellular or other wireless telecommunications services but instead use
the licensed facilities in support of other business activities, we are
not certain that the Cellular and Other Wireless Telecommunications
category is appropriate for determining how many PLMR licensees are
small entities for this analysis. Rather, it may be more appropriate to
assess PLMR licensees under the standards applied to the particular
industry subsector to which the licensee belongs.
26. Fixed Microwave Services. Fixed microwave services include
common carrier, private-operational fixed, and broadcast auxiliary
radio services. Currently, there are approximately 22,015 common
carrier fixed licensees and 61,670 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not yet defined a small business with respect to
microwave services. For purposes of this FRFA, we will use the SBA's
definition applicable to ``Cellular and Other Wireless
Telecommunications'' companies--that is, an entity with no more than
1,500 persons. The Commission does not have data specifying the number
of these licensees that have more than 1,500 employees, and thus is
unable at this time to estimate with greater precision the number of
fixed microwave service licensees that would qualify as small business
concerns under the SBA's small business size standard. Consequently,
the Commission estimates that there are 22,015 or fewer small common
carrier fixed licensees and 61,670 or fewer small private operational-
fixed licensees and small broadcast auxiliary radio licensees in the
microwave services that may be affected by the rules and policies
adopted herein. The Commission notes, however, that the common carrier
microwave fixed licensee category includes some large entities.
27. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission defined ``small business'' for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
``very small business'' as an entity with average gross revenues of $15
million for each of the three preceding years. The SBA has approved
these definitions. The FCC auctioned geographic area licenses in the
WCS service. In the auction, which commenced on April 15, 1997 and
closed on April 25, 1997, there were seven bidders that won 31 licenses
that qualified as very small business entities, and one bidder that won
one license that qualified as a small business entity. An auction for
one license in the 1670-1674 MHz band commenced on April 30, 2003 and
closed the same day. One license was awarded. The winning bidder was
not a small entity.
28. 39 GHz Service. The Commission defines ``small entity'' for 39
GHz licenses as an entity that has average gross revenues of less than
$40 million in the three previous calendar years. ``Very small
business'' is defined as an entity that, together with its affiliates,
[[Page 77564]]
has average gross revenues of not more than $15 million for the
preceding three calendar years. The SBA has approved these definitions.
The auction of the 2,173 39 GHz licenses began on April 12, 2000, and
closed on May 8, 2000. The 18 bidders who claimed small business status
won 849 licenses.
29. Local Multipoint Distribution Service. An auction of the 986
Local Multipoint Distribution Service (LMDS) licenses began on February
18, 1998, and closed on March 25, 1998. The Commission defined ``small
entity'' for LMDS licenses as an entity that has average gross revenues
of less than $40 million in the three previous calendar years. An
additional classification for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. These regulations defining ``small entity'' in the
context of LMDS auctions have been approved by the SBA. There were 93
winning bidders that qualified as small entities in the LMDS auctions.
A total of 93 small and very small business bidders won approximately
277 A Block licenses and 387 B Block licenses. On March 27, 1999, the
Commission re-auctioned 161 licenses; there were 32 small and very
small business winning bidders that won 119 licenses.
30. 218-219 MHz Service. The first auction of 218-219 MHz
(previously referred to as the Interactive and Video Data Service or
IVDS) spectrum resulted in 178 entities winning licenses for 594
Metropolitan Statistical Areas (MSAs). Of the 594 licenses, 567 were
won by 167 entities qualifying as a small business. For that auction,
we defined a small business as an entity that, together with its
affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2
million in annual profits each year for the previous two years. We
defined a small business as an entity that, together with its
affiliates and persons or entities that hold interests in such an
entity and their affiliates, has average annual gross revenues not
exceeding $15 million for the preceding three years. A very small
business is defined as an entity that, together with its affiliates and
persons or entities that hold interests in such an entity and its
affiliates, has average annual gross revenues not exceeding $3 million
for the preceding three years. The SBA has approved of these
definitions. At this time, we cannot estimate the number of licenses
that will be won by entities qualifying as small or very small
businesses under our rules in future auctions of 218-219 MHz spectrum.
Given the success of small businesses in the previous auction, and the
prevalence of small businesses in the subscription television services
and message communications industries, we assume for purposes of this
FRFA that in future auctions, many, and perhaps all, of the licenses
may be awarded to small businesses.
31. Location and Monitoring Service (LMS). Multilateration LMS
systems use non-voice radio techniques to determine the location and
status of mobile radio units. For purposes of auctioning LMS licenses,
the Commission has defined ``small business'' as an entity that,
together with controlling interests and affiliates, has average annual
gross revenues for the preceding three years not exceeding $15 million.
A ``very small business'' is defined as an entity that, together with
controlling interests and affiliates, has average annual gross revenues
for the preceding three years not exceeding $3 million. These
definitions have been approved by the SBA. An auction for LMS licenses
commenced on February 23, 1999, and closed on March 5, 1999. Of the 528
licenses auctioned, 289 licenses were sold to four small businesses. We
cannot accurately predict the number of remaining licenses that could
be awarded to small entities in future LMS auctions.
32. Rural Radiotelephone Service. We use the SBA definition
applicable to cellular and other wireless telecommunication companies,
i.e., an entity employing no more than 1,500 persons. There are
approximately 1,000 licensees in the Rural Radiotelephone Service, and
the Commission estimates that there are 1,000 or fewer small entity
licensees in the Rural Radiotelephone Service that may be affected by
the rules and policies adopted herein.
33. Air-Ground Radiotelephone Service. We use the SBA definition
applicable to cellular and other wireless telecommunication companies,
i.e., an entity employing no more than 1,500 persons. There are
approximately 100 licensees in the Air-Ground Radiotelephone Service,
and the Commission estimates that almost all of them qualify as small
entities under the SBA definition.
34. Offshore Radiotelephone Service. This service operates on
several ultra high frequency (UHF) TV broadcast channels that are not
used for TV broadcasting in the coastal area of the states bordering
the Gulf of Mexico. At present, there are approximately 55 licensees in
this service. We use the SBA definition applicable to cellular and
other wireless telecommunication companies, i.e., an entity employing
no more than 1,500 persons. The Commission is unable at this time to
estimate the number of licensees that would qualify as small entities
under the SBA definition. The Commission assumes, for purposes of this
FRFA, that all of the 55 licensees are small entities, as that term is
defined by the SBA.
35. Multiple Address Systems (MAS). Entities using MAS spectrum, in
general, fall into two categories: (1) those using the spectrum for
profit-based uses, and (2) those using the spectrum for private
internal uses. With respect to the first category, the Commission
defines ``small entity'' for MAS licenses as an entity that has average
gross revenues of less than $15 million in the three previous calendar
years. ``Very small business'' is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $3
million for the preceding three calendar years. The SBA has approved of
these definitions. The majority of these entities will most likely be
licensed in bands where the Commission has implemented a geographic
area licensing approach that would require the use of competitive
bidding procedures to resolve mutually exclusive applications. The
Commission's licensing database indicates that, as of January 20, 1999,
there were a total of 8,670 MAS station authorizations. Of these, 260
authorizations were associated with common carrier service. In
addition, an auction for 5,104 MAS licenses in 176 EAs began November
14, 2001, and closed on November 27, 2001. Seven winning bidders
claimed status as small or very small businesses and won 611 licenses.
36. With respect to the second category, which consists of entities
that use, or seek to use, MAS spectrum to accommodate their own
internal communications needs, we note that MAS serves an essential
role in a range of industrial, safety, business, and land
transportation activities. MAS radios are used by companies of all
sizes, operating in virtually all U.S. business categories, and by all
types of public safety entities. For the majority of private internal
users, the definitions developed by the SBA would be more appropriate.
The applicable definition of small entity in this instance appears to
be the ``Cellular and Other Wireless Telecommunications'' definition
under the SBA rules. This definition provides that a small entity is
any entity employing no more than 1,500 persons. The Commission's
licensing database indicates that, as of January 20, 1999, of the 8,670
total MAS station authorizations, 8,410 authorizations
[[Page 77565]]
were for private radio service, and of these, 1,433 were for private
land mobile radio service.
37. Incumbent 24 GHz Licensees. The rules that we adopt could
affect incumbent licensees who were relocated to the 24 GHz band from
the 18 GHz band, and applicants who wish to provide services in the 24
GHz band. The Commission did not develop a definition of small entities
applicable to existing licensees in the 24 GHz band. Therefore, the
applicable definition of small entity is the definition under the SBA
rules for ``Cellular and Other Wireless Telecommunications.'' This
definition provides that a small entity is any entity employing no more
than 1,500 persons. We believe that there are only two licensees in the
24 GHz band that were relocated from the 18 GHz band, Teligent and TRW,
Inc. It is our understanding that Teligent and its related companies
have less than 1,500 employees, though this may change in the future.
TRW is not a small entity. Thus, only one incumbent licensee in the 24
GHz band is a small business entity.
38. Future 24 GHz Licensees. With respect to new applicants in the
24 GHz band, we have defined ``small business'' as an entity that,
together with controlling interests and affiliates, has average annual
gross revenues for the three preceding years not exceeding $15 million.
``Very small business'' in the 24 GHz band is defined as an entity
that, together with controlling interests and affiliates, has average
gross revenues not exceeding $3 million for the preceding three years.
The SBA has approved these definitions. The Commission will not know
how many licensees will be small or very small businesses until the
auction, if required, is held.
39. 700 MHz Guard Band Licenses. We adopted size standards for
``small businesses'' and ``very small businesses'' for purposes of
determining their eligibility for special provisions such as bidding
credits and installment payments. A small business in this service is
an entity that, together with its affiliates and controlling
principals, has average gross revenues not exceeding $40 million for
the preceding three years. Additionally, a ``very small business'' is
an entity that, together with its affiliates and controlling
principals, has average gross revenues that are not more than $15
million for the preceding three years. SBA approval of these
definitions is not required. An auction of 52 Major Economic Area (MEA)
licenses commenced on September 6, 2000, can closed on September 21,
2000. Of the 104 licenses auctioned, 96 licenses were sold to nine
bidders. Five of these bidders were small businesses that won a total
of 26 licenses. A second auction of 700 MHz Guard Band licenses
commenced on February 13, 2001, and closed on February 21, 2001. All
eight of the licenses auctioned were sold to three bidders. One of
these bidders was a small business that won a total of two licenses.
40. Broadband Radio Service (formerly Multipoint Distribution
Service) and Educational Broadband Service (formerly Instructional
Television Fixed Service). Multichannel Multipoint Distribution Service
(MMDS) systems, often referred to as ``wireless cable,'' transmit video
programming to subscribers using the microwave frequencies of the
Multipoint Distribution Service (MDS) and Instructional Television
Fixed Service (ITFS). In an order issued in July 2004 in WT Docket No.
03-66, the Commission comprehensively reviewed our policies and rules
relating to the ITFS and MDS services, and replacing the Multipoint
Distribution Service (MDS) with the Broadband Radio Service and
Instructional Television Fixed Service (ITFS) with the Educational
Broadband Service. In connection with the 1996 MDS auction, the
Commission defined ``small business'' as an entity that, together with
its affiliates, has average gross annual revenues that are not more
than $40 million for the preceding three calendar years. The SBA has
approved of this standard. The MDS auction resulted in 67 successful
bidders obtaining licensing opportunities for 493 Basic Trading Areas
(BTAs). Of the 67 auction winners, 61 claimed status as a small
business. At this time, we estimate that of the 61 small business MDS
auction winners, 48 remain small business licensees. In addition to the
48 small businesses that hold BTA authorizations, there are
approximately 392 incumbent MDS licensees that have gross revenues that
are not more than $40 million and are thus considered small entities.
41. In addition, the SBA has developed a small business size
standard for Cable and Other Program Distribution, which includes all
such companies generating $12.5 million or less in annual receipts.
According to Census Bureau data for 1997, there were a total of 1,311
firms in this category, total, that had operated for the entire year.
Of this total, 1,180 firms had annual receipts of under $10 million,
and an additional 52 firms had receipts of $10 million or more but less
than $25 million. Consequently, we estimate that the majority of
providers in this service category are small businesses that may be
affected by the rules and policies in the Second Report and Order.
42. Finally, while SBA approval for a Commission-defined small
business size standard applicable to ITFS is pending, educational
institutions are included in this analysis as small entities. There are
currently 2,032 ITFS licensees, and all but 100 of these licenses are
held by educational institutions. Thus, we tentatively conclude that at
least 1,932 ITFS licensees are small businesses.
43. Multichannel Video Distribution and Data Service. MVDDS is a
terrestrial fixed microwave service operating in the 12.2-12.7 GHz
band. Licenses in this service were auctioned in January 2004, with 10
winning bidders for 192 licenses. Eight of these 10 winning bidders
claimed small businesses status for 144 of these licenses.
44. Aviation and Marine Services. Small businesses in the aviation
and marine radio services use a very high frequency (VHF) marine or
aircraft radio and, as appropriate, an emergency position-indicating
radio beacon (and/or radar) or an emergency locator transmitter. The
Commission has not developed a small business size standard
specifically applicable to these small businesses. For purposes of this
analysis, the Commission uses the SBA small business size standard for
the category ``Cellular and Other Telecommunications,'' which is 1,500
or fewer employees. Most applicants for recreational licenses are
individuals. Approximately 581,000 ship station licensees and 131,000
aircraft station licensees operate domestically and are not subject to
the radio carriage requirements of any statute or treaty. For purposes
of our evaluations in this analysis, we estimate that there are up to
approximately 712,000 licensees that are small businesses (or
individuals) under the SBA standard. In addition, between December 3,
1998 and December 14, 1998, the Commission held an auction of 42 VHF
Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and
161.775-162.0125 MHz (coast transmit) bands. For purposes of the
auction, the Commission defined a ``small'' business as an entity that,
together with controlling interests and affiliates, has average gross
revenues for the preceding three years not to exceed $15 million
dollars. In addition, a ``very small'' business is one that, together
with controlling interests and affiliates, has average gross revenues
for the preceding three years not to exceed $3 million dollars. There
are approximately 10,672 licensees in the Marine Coast Service, and the
Commission estimates that almost all of them qualify as ``small''
[[Page 77566]]
businesses under the above special small business size standards.
45. Public Safety Radio Services. Public Safety radio services
include police, fire, local government, forestry conservation, highway
maintenance, and emergency medical services. There are a total of
approximately 127,540 licensees in these services. Governmental
entities as well as private businesses comprise the licensees for these
services. All governmental entities with populations of less than
50,000 fall within the definition of a small entity.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
46. The policies and proposals set forth in the Second Report and
Order impact a number of Commission licensees and spectrum lessees in
various wireless services. The Second Further Notice explores ways in
which licensees and spectrum lessees may enter into arrangements in
which advanced technologies are opportunistically employed. The Second
Further Notice and seeks to provide parties with greater certainty as
to the types of opportunistic use arrangements that would be permitted
while fitting into the framework of the Commission's current rules.
47. Our proposals in the Second Report and Order to implement
certain advanced technologies necessarily implicates potential
reporting, recordkeeping and compliance requirements for licensees and
spectrum lessees, including: (1) Retention of lease agreements; (2)
reporting of spectrum leasing terms to the Commission; (3) licensee and
lessee compliance with the Commission's technical and service rules;
(4) licensee filings with the Commission on behalf of the lessee; (5)
licensee verification of lessee compliance with Commission rules; (6)
license supervision of a lessee's adherence to the Commission's rules
and policies; and (7) the leasing of spectrum by entities designated as
``small business'' or ``very small business'' under the Commission's
rules. Licensees and spectrum lessees may retain or hire outside
professionals (e.g., legal and engineering staff) to draft lease
arrangements, provide consulting services, maintain records and comply
with applicable Commission rules. They also may employ existing or new
employees to be responsible for reporting, recordkeeping, and other
compliance requirements.
48. The Second Further Notice also explores what steps the
Commission should take to further enhance secondary markets and
increase the efficient use of spectrum and the availability to the
public of innovative wireless services. The Second Further Notice does
not propose any specific reporting, recordkeeping or compliance
requirements in these matters. We are open to comment on what, if any,
requirements we should impose if we adopt these proposals.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
49. 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 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.''
See 5 U.S.C. 603(c)(1)-(c)(4).
50. Regarding our inquiry on ways to facilitate further development
of advanced technologies, we do not anticipate any adverse impact on
small entities. In fact, small (and large) entities should benefit from
the reduction in transaction costs associated with leasing and the
availability of other types of arrangements involving opportunistic use
of licensed spectrum. We encourage comments on ways in which others may
employ advanced technologies to opportunistically use licensed
spectrum. Specifically, commenters should propose additional means to
increase spectrum access and how that would fit into the rules and
policies already established by the Commission. We do not believe that
a revision of our rules would adversely impact small entities.
51. With regard to spectrum access through spectrum leasing
arrangements, we seek comment on additional ways in which licensees and
spectrum lessees may utilize advanced technologies, such as
opportunistic devices, within the context of the Commission's spectrum
leasing policies and rules. We do not anticipate that any rules we
adopt in this area would adversely impact small entities. We believe
that small and large entities will benefit from increased access to
spectrum and the utilization of advanced technologies.
52. With regard to spectrum access through private commons, we seek
comment on the potential for this approach to improve access as well as
the regulatory distinctions that are necessary to make this an
effective regulatory model. We do not anticipate any adverse impact on
small entities. We believe that both small and large entities that make
use of ``smart'' or ``opportunistic'' technologies within their bands
will benefit from the private commons option because this approach is
designed to minimize some of the transaction costs associated with
leasing or other market factors.
53. In addition, we seek comment on the technical parameters
necessary to distinguish private commons from spectrum leasing
arrangements or other arrangements. We do not anticipate any adverse
impact on small entities as a result of setting these parameters. We
believe that setting these parameters will benefit both small and large
entities by reducing regulatory uncertainty and encouraging spectrum
use.
54. We also seek comment on the examples of private commons set
forth in the Second Report and Order, as well as other types of private
commons arrangements. As stated in the Second Report and Order,
licensee or spectrum lessees establishing a private commons retains
direct responsibility for compliance with the Commission's rules. We
encourage comment on whether there are any additional policies or
requirements that could help ensure compliance. We do not anticipate
any adverse impact on small entities as a result of establishing
further compliance guidelines. We believe that establishing further
compliance guidelines all entities, including small entities, will
benefit from the additional control over their spectrum.
55. Finally, we seek comment on the appropriate notification
process for licensees or spectrum lessees that choose to offer a
private commons. In the Second Report and Order, we stated that a
licensee or spectrum lessee managing the private commons must notify
the Commission prior to permitting users to begin operating within the
private commons. In the Second Further Notice, we propose to give the
licensee or spectrum lessee the option of notifying the Commission
directly or, in the alternative, providing a URL that posts the terms
and conditions. We believe that this procedure will benefit all
entities, including small entities, by taking an additional step toward
increasing the efficient use of spectrum.
[[Page 77567]]
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
56. None.
57. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, will send a copy of this Second Further
Notice, including the IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration.
B. Initial Paperwork Reduction Act of 1995 Analysis Regarding the
Second Further Notice
58. In the Second Further Notice, this document seeks comment on a
proposed information collection. As part of the Commission's 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 document, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due at the same time as other comments
on this document and must have a separate heading designating them as
responses to the Initial Paperwork Reduction Analysis (IPRA). OMB
comments are due February 25, 2005. 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; and (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.
C. Comment Dates Regarding the Second Further Notice
59. Pursuant to applicable procedures set forth in Sec. Sec. 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested
parties may file comments on the Second Further Notice on or before
January 18, 2005, and reply comments on or before February 17, 2005.
Comments and reply comments should be filed in WT Docket No. 00-230.
All relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding.
60. Comments may be filed either by filing electronically, such as
by using the Commission's Electronic Comment Filing System (ECFS), or
by filing paper copies. Parties are strongly urged to file their
comments using ECFS (given recent changes in the Commission's mail
delivery system). Comments filed through the ECFS can be sent as an
electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html.
Only one copy of an electronic submission must be filed. In
completing the transmittal screen, the electronic filer should include
its full name, Postal Service mailing address, and the applicable
docket or rulemaking number, WT Docket No. 00-230. Parties also may
submit comments electronically by Internet e-mail. To receive 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.
61. Parties who choose to file by paper may submit such filings by
hand or messenger delivery, by U.S. Postal Service mail (First Class,
Priority, or Express Mail), or by commercial overnight courier. Parties
must file an original and four copies of each filing in WT Docket No.
00-230. Parties that want each Commissioner to receive a personal copy
of their comments must file an original plus nine copies. If paper
filings are hand-delivered or messenger-delivered for the Commission's
Secretary, they must be delivered to the Commission's contractor at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002-4913. To
receive an official ``Office of the Secretary'' date stamp, documents
must be addressed to Marlene H. Dortch, Secretary, Federal
Communications Commission. (The filing hours at this facility are 8
a.m. to 7 p.m.) If paper filings are submitted by mail though the U.S.
Postal Service (First Class mail, Priority Mail, and Express Mail),
they must be sent to the Commission's Secretary, Marlene H. Dortch,
Federal Communications Commission, Office of the Secretary, 445 12th
Street, SW., Washington, DC 20554. If paper filings are submitted by
commercial overnight courier (i.e., by overnight delivery other than
through the U.S. Postal Service), such as by Federal Express or United
Parcel Service, they must be sent to the Commission's Secretary,
Marlene H. Dortch, Federal Communications Commission, Office of the
Secretary, 9300 East Hampton Drive, Capitol Heights, MD 20743. (The
filing hours at this facility are 8 a.m. to 5:30 p.m.)
62. Parties may also file with the Commission some form of
electronic media submission (e.g., diskettes, CDs, tapes, etc.) as part
of their filings. In order to avoid possible adverse affects on such
media submissions (potentially caused by irradiation techniques used to
ensure that mail is not contaminated), the Commission advises that they
should not be sent through the U.S. Postal Service. Hand-delivered or
messenger-delivered electronic media submissions should be delivered to
the Commission's contractor, Natek, Inc., at 236 Massachusetts Avenue,
NE., Suite 110, Washington, DC 20002-4913. Electronic media sent by
commercial overnight courier should be sent to the Commission's
Secretary, Marlene H. Dortch, Federal Communications Commission, Office
of the Secretary, 9300 East Hampton Drive, Capitol Heights, MD 20743.
63. Regardless of whether parties choose to file electronically or
by paper, they should also send one copy of any documents filed, either
by paper or by e-mail, to each of the following: (1) Best Copy &
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554, facsimile (202) 488-5563, or e-mail at
fcc@bcpiweb.com; and (2) Paul Murray, Commercial Wireless Division,
Wireless Telecommunications Bureau, 445 12th Street, SW., Washington,
DC 20554, or e-mail at Paul.Murray@fcc.gov.
64. Comments, reply comments, and ex parte submissions will be
available for public inspection during regular business hours in the
FCC Reference Information Center, Federal Communications Commission,
445 12th Street, SW., Room CY-A257, Washington, D.C. 20554. These
documents also will be available electronically at the Commission's
Disabilities Issues Task Force Web site, http://www.fcc.gov/dtf, and
from the Commission's Electronic Comment Filing System. Documents are
available electronically in ASCII text, Word 97, and Adobe Acrobat.
Copies of filings in this proceeding may be obtained from Best Copy &
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554, telephone (800) 378-3160, facsimile (202) 488-
5563, or via e-mail at fcc@bcpiweb.com. This document is also available
in alternative formats (computer diskette, large print, audio cassette,
and Braille). Persons who need documents in such formats may contact
Brian Millin at (202) 418-7426, TTY (202) 418-7365,
Brian.Millin@fcc.gov, or send an e-mail to access@fcc.gov.
D. Ex Parte Rules Regarding the Second Further Notice--Permit-But-
Disclose Proceeding
65. With regard to the Second Further Notice, this is a permit-but-
disclose
[[Page 77568]]
notice and comment rule making proceeding. Ex parte presentations are
permitted, except during the Sunshine Agenda period, provided they are
disclosed as provided in Commission rules. See generally 47 CFR 1.1202,
1.1203, and 1.1206.
IV. Ordering Clauses
66. Pursuant to the authority contained in sections 1, 4(i), and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i), and 303(r), the Second Further Notice is adopted.
67. The Commission's Consumer Information Bureau, Reference
Information Center, shall send a copy of the Second Report and Order,
Order on Reconsideration, and Second Further NPRM of Proposed
Rulemaking, 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. 04-27790 Filed 12-23-04; 8:45 am]
BILLING CODE 6712-01-P