[Federal Register: October 19, 2005 (Volume 70, Number 201)]
[Proposed Rules]               
[Page 60770-60781]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc05-23]                         

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22, 24, and 27

[WT Docket Nos. 03-264; FCC 05-144]

 
Amendment of Various Rules Affecting Wireless Radio Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) requests comment on whether to implement a spectral 
density model to its radiated power rules for wireless radio services 
(WRS); further increase its radiated power limits; specify radiated 
power as an average rather than peak; and apply the radiated power rule 
changes to other services. In a related document, the Commission has 
streamlined and harmonized licensing provisions in the WRS that were 
identified in part during the Commission's 2000 and 2002 biennial 
regulatory reviews.

DATES: Submit comments on or before December 19, 2005, and submit reply 
comments on or before January 17, 2006. For detailed instructions for 
submitting comments and additional information on the rulemaking 
process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Wilbert E. Nixon, Jr. and/or B.C. 
``Jay'' Jackson, Jr. of the Mobility Division, Wireless 
Telecommunications Bureau, at 202-418-0620 or via e-mail at 
Wilbert.Nixon@fcc.gov and/or Jay.Jackson@fcc.gov.



SUPPLEMENTARY INFORMATION: This is a summary of the Further Notice of 
Proposed Rulemaking (FNPRM) portion of the Commission's Report and 
Order and Further Notice of Proposed Rulemaking, FCC 05-144, in WT 
Docket Nos. 03-264, adopted July 22, 2005, and released August 9, 2005. 
The Commission is also concurrently publishing a summary of the Report 
and Order in the Federal Register. The full text of the document is 
available for public inspection and copying during regular business 
hours at the FCC Reference Information Center, 445 12th St., SW., Room 
CY-A257, Washington, DC 20554. The complete text may be purchased from 
the Commission's duplicating contractor: Best Copy & Printing, Inc., 
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. 
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 Further Notice of Proposed Rulemaking

I. Introduction and Background

    1. In the Report and Order portion of the Report and Order and 
Further Notice of Proposed Rulemaking, we revise the broadband PCS 
transmitting power rule by eliminating the transmitter output power 
limit portion of that rule. We note, however, that various proposals 
before us concerning

[[Page 60771]]

the radiated power portion of the rule (EIRP limits), particularly 
those introduced into the record by CTIA's recent ex parte filing, give 
rise to practical and technical issues that we believe should be 
further evaluated and addressed before we act on these proposals. 
Although it appears that some of these radiated power proposals have 
considerable merit, especially as applied across various bands or 
services in a harmonized fashion, we find that a more complete record 
would assist us in properly analyzing the technical details and 
specifics needed to craft a clear and workable radiated power rule that 
is not unduly burdensome. We also see no need to delay implementation 
of the other streamlining actions taken in the Report and Order while 
we consider this issue. Therefore, we are splitting off the radiated 
power issues from the Report and Order and consider them in the FNPRM. 
This will allow us to seek a more comprehensive record, and will 
provide an opportunity to comment for any parties that might wish to 
address any of the proposals in the CTIA filing and the issues 
discussed below.
    2. Accordingly, in the FNPRM, we ask a number of questions on the 
details of the CTIA proposals, explained further below, for changes to 
the broadband PCS radiated power limits. In addition, we consider 
whether these proposals should be applicable to those part 22 and part 
27 services that operate under a flexible regulatory framework similar 
to part 24 broadband PCS. We also seek comment on possible changes to 
other technical rules that may be appropriate if we adopt changes to 
the radiated power rules.

II. Discussion

A. The CTIA Proposal

    3. CTIA's ex parte filing proposes that the Commission revise its 
PCS radiated power rules to limit average EIRP for broadband PCS 
stations having an antenna height of up to 300 meters above average 
terrain to the larger of: (1) 1640 Watts per carrier (3280 Watts in 
rural areas) which is the current rule, and (2) 3280 Watts per MHz of 
emission bandwidth (6560 Watts per MHz of emission bandwidth in rural 
areas). For stations using an antenna height greater than 300 meters 
above average terrain, CTIA proposes that the ``per MHz'' limit be set 
to 1640 rather than 3280 Watts. We note that the CTIA plan for revision 
of the radiated power rule comprises three related but independent 
proposals that we believe can and should be addressed and evaluated 
individually. First, CTIA proposes to add a power spectral density 
feature to the current rule. This would allow more radiated power, the 
specific amount being proportional to emission bandwidth, for stations 
transmitting emissions with a bandwidth wider than 500 kHz, relative to 
stations transmitting emissions with a bandwidth less than 500 kHz. 
Under CTIA's proposal, the narrow emission bandwidth stations would 
remain subject to the current set radiated power limits, preventing the 
unintended result of narrowband systems actually having to decrease 
power. Second, CTIA generally proposes increasing the maximum radiated 
power for emissions with a bandwidth wider than 500 kHz, 
notwithstanding the implementation of a spectral density model. Third, 
CTIA proposes that the radiated power rule be specified in terms of 
average power rather than peak power. CTIA states that the issue of 
peak vs. average power is ``logically separate'' from the power 
spectral density issue, but believes that it is appropriate to address 
it because it arises in the ``very same sentence in the rules.'' 
Finally, CTIA proposes that the Commission ensure regulatory parity for 
technically like services by mirroring the requested broadband PCS 
changes in our part 27 Advanced Wireless Service (AWS) rules.
    4. We welcome comment on all aspects of the CTIA proposal. We 
recognize the effort CTIA has made to reconcile the differing positions 
filed earlier in the record and to craft a consensus among the parties. 
CTIA states that its proposal will facilitate deployment of wideband 
technologies and eliminate disadvantages for certain narrowband 
technologies, resulting in lower costs for consumers. Because many of 
the commenting parties support the proposal, we believe that it makes a 
good starting point for consideration of these issues. Nevertheless, as 
discussed in detail below, we have some concerns with CTIA's proposal, 
especially in circumstances where subsequent entrants operating within 
our rules and their licensed parameters seek to introduce technologies 
and services that are incompatible with existing systems. For instance, 
we question whether the proposal would serve the purpose of balancing 
the interference potential of various known and future technologies, as 
well as the relative coverage or performance of wideband versus 
narrowband systems. We also believe that the CTIA proposal, as 
outlined, may be unnecessarily complex in some respects, leading to 
practical difficulties in compliance. We question whether the proposed 
radiated power limits are comparable to power levels actually used by 
licensees in their current systems.
    5. We seek forward-looking comment to inform us on possible 
unintended consequences that might flow from the technical aspects of 
the CTIA proposal, such as the ``peak vs. average power'' issue. Our 
radiated power rules are intended to limit the interference potential 
of wireless systems while still providing technical flexibility to 
licensees. As a result, substantial changes to our radiated power rules 
may require consideration of how these changes may affect other related 
technical interference-limiting rules. Based on these considerations, 
we raise a number of questions in the following paragraphs about the 
three aspects of the CTIA proposal. We also suggest some simpler 
alternatives that might accomplish the same objectives as the CTIA 
proposal, and we seek comment on those as well.
    6. We also seek comment on whether we should extend the relief 
CTIA's requests to other services. As noted, CTIA specifically requests 
that the proposed changes be mirrored in the part 27 rules governing 
AWS systems. If we adopt any or all of the proposed changes, should we 
implement them in other services, for example, part 27 (700 MHz and/or 
Wireless Communications Services (WCS)), or part 22 (Cellular)? We 
recognize that there may be concerns with applying the proposed changes 
to other services that may be less flexible than broadband PCS, or 
where there may be possible interference concerns to adjacent spectrum 
users (i.e., Public Safety) or existing incumbent systems (i.e., 
Broadcasters), and therefore we seek comment on whether CTIA's proposed 
changes should be extended beyond part 24 broadband PCS. In this 
regard, we note that Crown Castle International Corp. (Crown Castle) 
recently filed an ex parte in this proceeding. Crown Castle is the sole 
licensee of a nationwide authorization in the 1670-1675 MHz band with 
plans to deploy, through its subsidiary Crown Castle Mobile Media, a 
wide-band terrestrial wireless network to ``transmit multiple channels 
of high-quality, digital video and audio programming to mobile phones 
and other hand-held devices.'' Crown Castle supports the CTIA proposal 
in principle, but also seeks application of the proposal, if 
implemented, on a proportional basis. We seek comment on application of 
CTIA's proposal in general to the 1670-1675 MHz band. Moreover, Crown 
Castle points out that CTIA seeks application of its proposal to part 
24 PCS and part 27 AWS, i.e., bands that were previously afforded

[[Page 60772]]

relief in the Rural Report and Order. In supporting CTIA's proposal, 
Crown Castle requests that the Commission increase power levels in 
rural areas for certain bands not afforded relief in the Rural Report 
and Order, published at 70 FR 21652, April 27, 2005, specifically the 
1670-1675 MHz band, as the ``reasoning provided by the Commission for 
increasing the base station power limits applicable to rural PCS and 
AWS operations also applies to 1670-75 MHz operations'' (i.e., allowing 
expanded rural coverage while using fewer base stations). We seek 
comment on this issue as well.

B. Power Limits for Wide Bandwidth Emissions

    7. Power spectral density limits. In the Notice of Proposed Rule 
Making, the Commission requested that commenters consider a power 
spectral density (i.e., power per unit of bandwidth) limit in the 
context of achieving a more ``technology neutral'' transmitter power 
output rule. The Commission was concerned that a ``per carrier'' (or 
``per emission'') wording, instead of the existing ``per transmitter'' 
language, would shift the burden of compliance with the transmitter 
output power rule from equipment manufacturers to individual licensees, 
who might find it impracticable to individually monitor each 
``carrier'' (or emission). Because we decided to eliminate the 
transmitter output power rule, the compliance burden associated with it 
will no longer exist. Nevertheless, our question opened the door to 
consideration of power spectral density limits generally.
    8. The Commission seeks to promulgate rules that are ``technology 
neutral'' because we believe that ideally it is in the public interest 
for competing telecommunications technologies to succeed or fail in the 
marketplace on the basis of their merits and other market factors, and 
not primarily because of government regulation. It should also be 
understood that ``technology neutral'' means that our rule should 
neither penalize nor give advantage to any particular technology 
unnecessarily. Sometimes, however, an FCC rule adopted under earlier 
unknown or different technological circumstances will inadvertently 
affect new and evolving technologies unequally and, in fact, this may 
be unavoidable in some cases, if the purpose of the rule (e.g., 
avoiding harmful interference) is to be accomplished.
    9. According to Motorola, adoption of a rule providing a power 
spectral density limit for broadband PCS can be considered in terms of 
leveling the competitive playing field between narrow emission and wide 
emission technologies. Qualcomm and Motorola both argue that the 
current radiated power rule, by failing to taking emission bandwidth 
into consideration, authorizes narrow emission systems to transmit more 
aggregate radiated power than wide emission systems, within a given 
spectrum block. CTIA claims that the current EIRP limit is interpreted 
to place a limit on the power of a single carrier but to permit 
multiple carriers to be transmitted from a single base station. CTIA 
further claims that systems operating in smaller bandwidths are 
permitted to operate at higher power spectral density than those 
operating in larger bandwidths. CTIA argues that technologies, such as 
CDMA, W-CDMA, or OFDM, that combine many voice signals onto a single 
combined signal and that use advanced techniques to counter multi-path 
fading therefore are disadvantaged by the per-carrier power constraint 
in the current rules. CTIA contends that removing an artificial 
handicap on the use of some technologies--such as W-CDMA--would 
facilitate the adoption and deployment of these technologies by 
wireless service providers. Moreover, CTIA contends that researchers 
and inventors would no longer be constrained to give up power in order 
to use wider bandwidths.
    10. Existing narrow emission PCS technologies (i.e., TDMA, GSM) 
carry 3 to 8 voice conversations per emission, while existing wide 
emission technologies (i.e., CDMA) carry as many as 20 to 40 voice 
conversations per emission. Because the current rule makes no 
distinction between wide and narrow emissions, it applies the same 
maximum radiated power limit to both. Consequently, a wide emission 
system is allowed to provide only about one fifth of the radiated power 
for each voice conversation that a narrow emission system is allowed to 
provide, assuming that each system is fully loaded and operating at the 
maximum power permitted by rule. Thus the average voice conversation on 
the wide emission system would have a lower signal to noise ratio, 
which, despite the partially compensating processing gain provided by 
signal spreading, would reduce the coverage range. Motorola expressed a 
view that the Commission's current policy is biased against wider 
bandwidth technologies as it allows technologies that utilize a 
narrower bandwidth to radiate a higher power per unit bandwidth, thus 
placing wider bandwidth systems at a competitive disadvantage because 
wider bandwidth technologies will need to deploy additional 
infrastructure to maintain the same coverage area as narrower bandwidth 
technologies.
    11. Several of the comments reflect a concern that, if the 
Commission were to adopt a rule allowing more radiated power for wide 
emissions than for narrow emissions, the power allowed by such a rule 
for narrow emissions (such as GSM and TDMA) would be lower than is 
permitted by the current rule. These commenters argue that there should 
be no reduction in the radiated power limit currently applicable to 
existing PCS systems. We note that we did not propose in the NPRM to 
reduce the transmitting power limits for broadband PCS systems, nor do 
we do so here. Thus, even if we were to adopt the CTIA proposal, we 
assume that the current radiated power limits (1640 Watts EIRP non-
rural, 3280 Watts EIRP rural) would be unchanged for all narrow 
emission types. The parties' comments have raised a good question 
however, and we seek comment on whether a power spectral density 
radiated power limit should be applied for narrow emissions as well as 
wide emissions. For example, should the radiated power limit for 30 kHz 
bandwidth emissions be lower than that for 200 kHz bandwidth emissions? 
Likewise, should the radiated power limit for 12.5 kHz bandwidth 
emissions be lower than that for 30 kHz bandwidth emissions?
    12. One of our concerns is that a larger aggregate power presents a 
greater interference potential to other systems. In other words, the 
current rule may well allow systems employing narrow emission 
technologies to pose a greater interference potential than those 
employing wide emission technologies. We note that CTIA does not 
propose any upper limit or cap on radiated power under this approach, 
and consequently the power levels permitted under its proposal could 
easily reach some very large numbers (i.e., 32,800 Watts in a rural 
area) for wider emission types such as Wideband Code Division Multiple 
Access (W-CDMA) using 5 MHz bandwidths. Moreover, existing licensees 
and new entrants may not have adequate information about the types of 
technology being deployed in adjacent bands or areas, including system 
architecture, nor the locations of base stations that could cause 
interference. This additional interference risk with limited 
information could lead to difficult negotiating positions among 
adjacent systems using different technologies, which could hinder 
coordination procedures that have been at the heart of the success of 
interference avoidance

[[Page 60773]]

in the broadband PCS service, and which will be applied to other 
flexible use bands (e.g., part 27 AWS). In considering the issue of 
whether to adopt a radiated power limit rule that would allow more 
power for wider bandwidth emissions, we must consider the primary 
objective of the rule, which is to limit interference potential between 
licensees. How should the Commission balance the interference potential 
of various technologies and facilitate information sharing in order to 
facilitate inter-system coordination negotiations between licensees?
    13. If we ultimately decide to adopt a rule that allows a higher 
radiated power limit for wide emissions than for narrow emissions, we 
must define which emissions types are wide and which are narrow, and 
the basis for that classification. We note that typical systems using 
emissions that have a bandwidth wider than 1 MHz re-use the same 
channels in every cell, whereas systems using emissions with a 
bandwidth less than 1 MHz use a cellular frequency re-use pattern where 
different channel sets are used in adjacent cells. Another way of 
describing this is that systems using emissions that have a bandwidth 
wider than 1 MHz use their entire spectrum contiguously in each cell, 
whereas systems using emissions with a bandwidth less than 1 MHz use at 
each cell a number of narrower channels separated by several channels 
not used in that cell. We note that Motorola proposes in its earlier 
filings to utilize a bandwidth of 1 MHz as the dividing line. The CTIA 
proposal, however, results in the division between narrow and wide 
emission bandwidths occurring at 500 kHz rather than 1 MHz. We believe 
however, that if a technology is developed using a 500 kHz-1MHz 
bandwidth, the technology is more likely to use different channels at 
different cells like other narrowband systems, rather than use a spread 
spectrum approach as is typically used in wideband systems. 
Accordingly, if we were to adopt a spectral density model similar to 
what CTIA proposes, we seek comment on whether to use 500 kHz, 1 MHz, 
or some other emission bandwidth as the dividing point between narrow 
and wide emissions, noting that we seek to logically divide wireless 
technologies into two groups that use differing system architectures.
    14. Adoption of a radiated power rule that allows more power for 
wide emissions than for narrow emissions also raises a number of 
questions in regard to implementation. A ``Watts per MHz'' power 
spectral density limit, such as the CTIA proposal includes for wider 
bandwidth emissions, would define power limits based on a sliding scale 
with a potentially infinite number of linear scaled limit values. 
Initially, we question whether this is the best way to structure a 
radiated power limit rule for PCS and other flexible services. An 
alternative would be to use a ``step'' approach, with specific power 
limits for particular bandwidth ranges, which could perhaps be set 
forth in a table to make clear what limit is applicable in any given 
instance. For an analogy, if it were desired in the interest of highway 
safety to require heavier vehicles to travel slower than lighter 
vehicles, it may make more sense to simply have two posted speed 
limits, one for automobiles and another for heavier vehicles such as 
trucks, rather than to adopt a ``mph per ton of vehicle'' ratio that 
would likely result in a different individual speed limit being 
applicable to each model of car or truck in accordance with how much 
that particular model weighs. While the latter might be more accurate 
in terms of equalizing the momentum of vehicles, the gained accuracy is 
greatly outweighed by the resultant complexity and difficulty in 
determining compliance. CTIA apparently differs with this assessment, 
stating that a ``stepped limit'' would be less appropriate than a power 
spectral density applied to ``every contiguous 1 MHz region in the 
relevant band,'' but offers no reasons, however, for that particular 
position. We therefore seek comment on whether, if we decide to allow 
higher radiated power for wide emission types, this power should be 
expressed in terms of a specific limit or series of limits for various 
emission bandwidths. We note that this could be easily codified in 
table form, as illustrated below. The simplest proposal would involve 
having only four power radiated limits: rural and non-rural power 
limits for wide emissions (for example, emissions with bandwidth 
exceeding 1 MHz), and rural and non-rural power limits for narrow 
bandwidth emissions.

                    Table 1.--PCS Maximum EIRP Limits
------------------------------------------------------------------------
     Emission bandwidth             Non-rural               Rural
------------------------------------------------------------------------
< 1 MHz (narrow).............  1640 Watts (no        3280 Watts (no
                               change).              change).
>=1 MHz (wide)..............  3280 Watts (for       6560 Watts (for
                               example).             example).
------------------------------------------------------------------------

    15. Another possible variation is the use of a series of radiated 
power limits corresponding to six common existing emission bandwidths 
as illustrated in Table 2: 6.25 kHz, 12.5 kHz, 16/20/25/30 kHz, 200 
kHz, 1.25 MHz, 4.3/5 MHz. The value of each radiated power limit would 
be chosen as appropriate to the technologies commonly deployed in that 
emission bandwidth, and thus the power levels would not necessarily be 
linearly scaled by bandwidth or otherwise related to each other, as 
would be the case with a pure power spectral density limit. Would the 
benefit of having custom tailored power levels for each common 
bandwidth justify the added complexity of an increased number of 
limits? What would be appropriate power levels for these emission 
bandwidths? We seek comment on these methods for providing higher 
radiated power limits for systems employing emissions with wider 
bandwidths and any other alternatives, including CTIA's preferred 
sliding scale approach in terms of ``Watts per MHz.''

                                        Table 2.--PCS Maximum EIRP Limits
----------------------------------------------------------------------------------------------------------------
        Emission bandwidth            Example technologies            Non-rural                   Rural
----------------------------------------------------------------------------------------------------------------
1 to 10 kHz (very narrow)........  FSK (digital voice)......  410 Watts (for example).  820 Watts (for example).
10 kHz to 15 kHz (narrow)........  NBFM, FSK................  820 Watts (for example).  1640 Watts (for
                                                                                         example).
15 kHz to 150 kHz (medium).......  FM, AMPS, iDEN...........  1640 Watts (no change)..  3280 Watts (no change).
150 kHz to 1 MHz (medium wide)...  GSM, EDGE................  1640 Watts (no change)..  3280 Watts (no change).

[[Page 60774]]


1 MHz to 3 MHz (wide)............  CDMA, 1X-EVDO, OFDM......  3280 Watts (for example)  6560 Watts (for
                                                                                         example).
> 3 MHz (very wide)..............  CDMA2000-3X, WCDMA.......  6560 Watts (for example)  13,120 Watts (for
                                                                                         example).
----------------------------------------------------------------------------------------------------------------

C. Radiated Power Limit Increases

    16. Some of the commenters propose not only to allow more radiated 
power for wide emission systems relative to narrow emission systems, 
but also to increase the overall radiated power limit substantially 
over that permitted by the current rule. For example, Ericsson 
originally proposed to increase the maximum radiated power limit for 
non-rural broadband PCS from 1640 to 6560 Watts EIRP, and QUALCOMM 
proposed that the limit be increased similarly for wide emissions. We 
reiterate that, using an open-ended power spectral density limit such 
as that in the CTIA proposal, permissible radiated power could reach 
very high power levels for very wide emission systems (e.g., 16,400 
Watts for a 5 MHz emission bandwidth in non-rural areas and 32,800 
Watts for a 5 MHz emission bandwidth in rural areas).
    17. We seek comment on whether these maximum power levels now being 
proposed by the parties for our rules may be far above power levels 
that licensees actually use in their systems. Do existing licensees use 
as much radiated power in their systems as is permitted by the current 
PCS radiated power rule? In this light, we ask what marginal benefit 
would be realized by further overall increases in our radiated power 
limits for broadband PCS or other flexible wireless services? We 
believe that our radiated power rule should be as flexible as possible, 
but it should also reflect realistic limits that are comparable to 
necessary power levels. We seek comment on how such levels should also 
accommodate implementation of future technologies and current 
situations that may prove unusual or exceptional, without imposing 
undue regulatory burdens or unnecessary risks of harmful interference. 
One reason to avoid unrealistically high limits in our rules would be, 
as CTIA has suggested, if we also were to specify radiated power limits 
in terms of average power instead of peak power (see discussion below). 
To build an adequate record on whether there is any routine or 
extraordinary need for very high power operation, we request that 
commenters supporting higher overall limits provide examples of actual 
situations in which licensees could beneficially use radiated power 
levels on the order of what is being proposed by the parties. Are there 
particular coverage or service quality problems that could be solved by 
such an increase? What effect would increased radiated power have on 
the potential for harmful interference to adjacent spectrum users?
    18. If we were to increase radiated power levels as CTIA proposes, 
it may be necessary to enhance coordination efforts between licensees, 
which will assist these licensees in minimizing instances of 
interference. We note that current rules do not require broadband PCS 
licensees to notify the Commission of the location of existing 
transmitter sites. We therefore seek comment on possible methods to 
improve information sharing among licensees, including comment on the 
types of circumstances that would trigger information disclosure or 
sharing requirements. For example, we note that an industry association 
made up of representatives of many current licensees has established a 
detailed protocol for exchanging technical information. We seek comment 
on whether this existing sharing protocol will be sufficient if we were 
to raise radiated power levels as CTIA proposes. As an alternative, 
should we require such licensees to notify adjacent licensees about the 
technical specifications of such base station prior to commencing 
operation, or should we require licensees (or lessees, in the case of 
secondary markets) to register such stations in ULS?
    19. Finally, we seek comment regarding whether radiated power limit 
increases will impact licensee's administrative burden in making 
filings required for proper evaluation of transmission sites in regard 
to environmental compliance. We note that wireless systems, including 
broadband PCS systems, are subject to environmental evaluation with 
respect to human exposure of RF radiation for non-building mounted 
antennas when the antenna height above ground level is less than 10 
meters and the total power of all channels is greater than 2000 watts 
ERP and for building mounted antennas when the total power from all 
channels is greater than 2000 watts ERP. Otherwise, these systems are 
categorically excluded from such environmental evaluation. We note that 
we are not proposing any change to RF exposure standards, and that CTIA 
``sees no connection between its proposal and RF exposure limits.'' 
However, we seek comment as to whether adoption of higher radiated 
power limits would increase the number of facilities requiring full 
environmental evaluation rather than being categorically excluded, and 
whether adoption of higher radiated power limits would outweigh any 
possible increased administrative burden. We also note that engineers 
considering the RF environment at a site location which includes a PCS 
cell may not in fact know the exact operating power of all the 
transmitters at that location, since that information is not collected 
by Commission and is not typically made available by licensees. 
Nonetheless, we find it reasonable that an engineer assume that the 
power is no greater than our rules permit. How would an increase in the 
radiated power limits affect the ability of consultants to analyze a 
site? Would high power use ``lock out'' other users from co-locating at 
a site, because to do so would exceed the RF exposure limits?

D. Peak vs. Average Radiated Power Limits

    20. For most of the last 50 years, wireless telecommunications 
services such as land mobile and public mobile telephone services, 
including analog cellular, used frequency or phase modulation (FM or 
PM) to transmit analog voice and/or tone modulation. The emissions from 
these older technologies have a ``constant envelope,'' which is to say, 
there are no peaks or valleys in the envelope of the modulated 
waveform. As a result, the peak power of such emissions is equal to the 
average power. In our power limit rules for private and public land 
mobile services, we did not need to specify either ``peak'' or 
``average'' because the two were equal.
    21. In recent years, we have allowed greater technical flexibility 
in many of our wireless services so that licensees could utilize newer 
technologies without having to obtain prior FCC approval. As a result, 
licensees in these services have employed a variety of newer and more 
efficient digital technologies, many of which produce an emission where 
the modulation

[[Page 60775]]

envelope is not of constant amplitude. With these emissions, the peak 
power is larger than the average power, and the ratio between the two 
is referred to as the peak-to-average ratio (PAR). Because the PAR can 
vary from 0 dB to as much as 13 dB, depending on the technology used 
and the modulation conditions, stations having equal average radiated 
powers could have substantially different peak radiated powers. Because 
receivers often begin to exhibit interference effects when the power of 
an undesired signal exceeds a certain value, even if only for a short 
duration, the peak radiated power of the emission can be an important 
factor in evaluating the interference potential of a transmitting 
station. Consequently, the Commission has in recent years adopted rules 
in our flexible services that limit peak radiated power rather than 
average radiated power.
    22. The CTIA filing states that the Commission's use of peak 
radiated power is subject to interpretation and could lead to confusion 
and proposes that the Commission's radiated power limits for PCS and 
AWS be specified in terms of average power, either instead of, or as an 
alternative to, peak power. CTIA points out that when several signals 
are present in an amplifier, that they can combine to produce high 
peaks even though individually they would not have high peaks. Given 
this concern, we seek comment as to whether we should depart from the 
Commission's practice of specifying peak radiated power and specify 
average radiated power as CTIA proposes. We note that the peak power of 
a radiated emission is always equal to or higher than the average 
power. Under the CTIA proposal, peak power could reach levels much 
higher than the increased limits CTIA recommends for the rule. If we 
specify average radiated power, should we also include a limit on the 
PAR, in order to guard against interference, and what should that limit 
be? We request that commenters consider the pros and cons of peak and 
average radiated power limits in terms of controlling the interference 
potential of stations, conforming to current industry measurement 
procedures using available measuring instruments, minimizing the burden 
of compliance with the rules, and having applicability to the wide 
range of technologies in use today and in the future.

III. Procedural Matters

A. Comment Filing Procedures

    23. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments on the 
Further Notice of Proposed Rulemaking, WT Docket No. 03-264, on or 
before December 19, 2005, and submit reply comments on or before 
January 17, 2006. Comments may be filed using: (1) The Commission's 
Electronic Comment Filing System (ECFS), (2) the Federal Government's 
eRulemaking Portal, or (3) by filing paper copies. See Electronic 
Filing of Documents in Rulemaking Proceedings, published at 63 FR 
24121, May 1, 1998.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 

should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to ecfs@fcc.gov, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: Contact the FCC to request materials in 
accessible formats (braille, large print, electronic files, audio 
format, etc.) by e-mail at FCC504@fcc.gov or call the Consumer & 
Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365 
(TTY).
    24. 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 http://www.fcc@bcpiweb.com">
http://www.fcc@bcpiweb.com; and (2) Wilbert E. Nixon, Jr., Mobility Division, 
2) Wilbert E. Nixon, Jr., Mobility Division, 
Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, 
DC 20554, or e-mail at Wilbert.Nixon@fcc.gov.

B. Ex Parte Rules Regarding the Permit-But-Disclose Comment Proceeding

    25. 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, and 1.1206.

C. Initial Regulatory Flexibility Analysis

    26. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA) (See 5 U.S.C. 601-612 ), 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 the FNPRM. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed on or before December 19, 2005. 
Reply comments must be filed on or before January 17, 2006. The 
Commission will send a copy of the Further Notice, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration 
(SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.
1. Need for, and Objectives of, the Proposed Rules
    27. In the Report and Order, we revise the Broadband PCS 
transmitting power

[[Page 60776]]

rule by eliminating the transmitter output power limit portion of that 
rule. We note, however, that various proposals before us concerning the 
radiated power portion of the rule (EIRP limits), particularly those 
introduced into the record by CTIA's recent ex parte filing, give rise 
to practical and technical concerns that we believe should be further 
evaluated and addressed before we act on these proposals. Although it 
appears that some of these radiated power proposals have considerable 
merit, especially as applied across various bands or services in a 
harmonized fashion, we find that a more complete record would assist us 
in properly analyzing the technical details and specifics needed to 
craft a clear and workable radiated power rule that is not unduly 
burdensome. Accordingly, in the FNPRM, we ask a number of questions on 
the details of the CTIA proposals for changes to the broadband PCS 
radiated power limits. In addition, we consider whether these proposals 
should be applicable to those part 22 and part 27 services that operate 
under a flexible regulatory framework similar to part 24 Broadband PCS. 
Finally, we also seek comment on possible changes to other technical 
rules that may be appropriate if we adopt changes to the radiated power 
rules, as explained further below.
2. Legal Basis
    28. The potential actions on which comment is sought in the FNPRM 
would be authorized under sections 4(i), 7, 11, 303(c), 303(f), 303(g), 
303(r), and 332 of the Communications Act of 1934, as amended, 47 
U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r), and 332.
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply
    29. The RFA requires that an initial regulatory flexibility 
analysis be prepared for notice-and-comment rulemaking proceedings, 
unless the Agency certifies that ``the rule will not, if promulgated, 
have a significant impact on a substantial number of small entities.'' 
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). A small 
organization is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
This IRFA describes and estimates the number of small entity licensees 
that may be affected if the proposals in the FNPRM are adopted.
    30. Small Businesses. Nationwide, there are a total of 22.4 million 
small businesses, according to SBA data.
    31. Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.
    32. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined as ``governments of cities, towns, townships, 
villages, school districts, or special districts, with a population of 
less than fifty thousand.'' As of 1997, there were approximately 87,453 
governmental jurisdictions in the United States. This number includes 
39,044 county governments, municipalities, and townships, of which 
37,546 (approximately 96.2%) have populations of fewer than 50,000, and 
of which 1,498 have populations of 50,000 or more. Thus, we estimate 
the number of small governmental jurisdictions overall to be 84,098 or 
fewer.
    33. We have included small incumbent local exchange carriers in 
this present RFA analysis. As noted above, a ``small business'' under 
the RFA is one that, inter alia, meets the pertinent small business 
size standard (e.g., a telephone communications business having 1,500 
or fewer employees), and ``is not dominant in its field of operation.'' 
The SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent local exchange carriers are not dominant in their field of 
operation because any such dominance is not ``national'' in scope. We 
have therefore included small incumbent local exchange carriers in this 
RFA analysis, although we emphasize that this RFA action has no effect 
on Commission analyses and determinations in other, non-RFA contexts.
    34. 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 are 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 request commenters to estimate 
the number of small entities that may be affected by any rule changes 
resulting from the FNPRM.
    35. The potential rules on which comment is sought in the FNPRM, if 
adopted, would possibly affect small entity licensees of the services 
identified below.

Wireless Radio Services

    36. Cellular Licensees. The SBA has developed a small business size 
standard for wireless firms within the broad economic census category 
``Cellular and Other Wireless Telecommunications.'' Under this SBA 
category, a wireless business is small if it has 1,500 or fewer 
employees. For the census category Cellular and Other Wireless 
Telecommunications firms, Census Bureau data for 1997 show that there 
were 977 firms in this category, total, that operated for the entire 
year. Of this total, 965 firms had employment of 999 or fewer 
employees, and an additional 12 firms had employment of 1,000 employees 
or more. Thus, under this category and size standard, the great 
majority of firms can be considered small. According to the most recent 
Trends in Telephone Service data, 719 carriers reported that they were 
engaged in the provision of cellular service, personal communications 
service, or specialized mobile radio telephony services, which are 
placed together in the data. We have estimated that 294 of these are 
small, under the SBA small business size standard.
    37. 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 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

[[Page 60777]]

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.
    38. 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. In the 220 MHz Third Report and Order, 
published at 62 FR 16004, April 3, 1997, 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.
    39. 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.
    40. Upper 700 MHz Band Licenses. The Commission released a Report 
and Order, published at 15 FCC Rcd 476 (2000), authorizing service in 
the upper 700 MHz band. This auction, previously scheduled for January 
13, 2003, has been postponed.
    41. Paging. In the Paging Second Report and Order, published at 62 
FR 11616, March 12, 1997, 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 the Trends in Telephone Service report, 
published in May 2002, 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.
    42. 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.
    43. 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 
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 in the Narrowband PCS Second 
Report

[[Page 60778]]

and Order, published at 65 FR 35843, June 6, 2000. 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.
    44. 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.
    45. 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.
    46. 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.
    47. 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. We also note 
that 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. 
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 carriers are small businesses under the SBA's 
definition.
    48. 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.
    49. 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 IRFA, 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.
    50. 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-

[[Page 60779]]

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.
    51. 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, 
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.
    52. 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.
    53. 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. In the 
218-219 MHz Report and Order and Memorandum Opinion and Order, 
published at 64 FR 59656, November 3, 1999, 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 IRFA that in future auctions, many, and perhaps 
all, of the licenses may be awarded to small businesses.
    54. 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.
    55. 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.
    56. 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.
    57. 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 
IRFA, that all of the 55 licensees are small entities, as that term is 
defined by the SBA.
    58. 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.
    59. 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

[[Page 60780]]

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 were for private radio 
service, and of these, 1,433 were for private land mobile radio 
service.
    60. 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.
    61. 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.
    62. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, 
published at 65 FR 17594, April 4, 2000, 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, and 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.
    63. Multipoint Distribution Service, Multichannel Multipoint 
Distribution Service, and 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 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.
    64. 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 proposed in the FNPRM.
    65. 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.
    66. Cable Television Relay Service. This service includes 
transmitters generally used to relay cable programming within cable 
television system distribution systems. The SBA has defined a small 
business size standard for Cable and other Program Distribution, 
consisting of all such companies having annual receipts of no more than 
$12.5 million. According to Census Bureau data for 1997, there were 
1,311 firms in the industry category Cable and Other Program 
Distribution, total, that operated for the entire year. Of this total, 
1,180 firms had annual receipts of $10 million or less, and an 
additional 52 firms had receipts of $10 million or more but less than 
$25 million. Thus, under this standard, we estimate that the majority 
of providers in this service category are small businesses that may be 
affected by the rules and policies proposed in the FNPRM.
    67. Multichannel Video Distribution and Data Service. MVDDS is a 
terrestrial fixed microwave service operating in the 12.2-12.7 GHz 
band. No auction has yet been held in this service, although an action 
has been scheduled for January 14, 2004. Accordingly, there are no 
licensees in this service.
4. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements
    68. The policy proposals in the FNPRM could apply to a significant 
number of Commission licensees of wireless services. Specifically, the 
FNPRM seeks comment on possible changes to the broadband PCS radiated 
power limits including the introduction of power spectral density 
limits and specifying average radiated power in additional to peak 
radiated power in measuring emissions. We recognize that if we were to 
increase radiated power levels, it may be necessary to enhance 
coordination efforts between licensees, which will assist licensees in 
minimizing instances of interference.

[[Page 60781]]

Also, we seek comment on possible methods to improve information 
sharing among licensees and the level of burden increase such 
information sharing might entail. We also note that we have discussed 
possible changes to the likelihood of needing environmental evaluations 
as a result of our proposed actions in Section E of this IRFA, infra.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    69. 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.''
    70. In addition to our discussion of compliance burdens, supra, we 
have noted in this FNPRM that radiated power limit increases may impact 
licensee's administrative burden in making filings required for proper 
evaluation of transmission sites in regard to environmental compliance. 
We have sought comment on this issue. We note that wireless systems, 
including broadband PCS systems, are subject to environmental 
evaluation with respect to human exposure of RF radiation for non-
building mounted antennas when the antenna height above ground level is 
less than 10 meters and the total power of all channels is greater than 
2000 watts ERP and for building mounted antennas when the total power 
from all channels is greater than 2000 watts ERP. Otherwise, these 
systems are categorically excluded from such environmental evaluation. 
Although we are not proposing any change to RF exposure standards, we 
seek comment as to whether adoption of higher radiated power limits 
would increase the number of facilities requiring full environmental 
evaluation rather than being categorically excluded, and whether 
adoption of higher radiated power limits would outweigh any possible 
increased administrative burden.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    71. None.

D. Initial Paperwork Reduction Act of 1995 Analysis

    72. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden ``for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    73. 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 or before December 19, 2005, and reply 
comments on or before January 17, 2006. Comments and reply comments 
should be filed in both WT Docket Nos. 03-103 and 05-42. All relevant 
and timely comments will be considered by the Commission before final 
action is taken in this proceeding.
    74. 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 http://www.fcc@bcpiweb.com">
http://www.fcc@bcpiweb.com; and (2) Wilbert E. Nixon, Jr., Mobility Division, 
2) Wilbert E. Nixon, Jr., Mobility Division, 
Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, 
DC 20554, or e-mail at Wilbert.Nixon@fcc.gov.

IV. Ordering Clauses

    75. It is further ordered that the commission's Consumer 
Information Bureau, Reference Information Center, shall send a copy of 
this FNPRM, including the Final Regulatory Flexibility Certification 
and the Initial Regulatory Flexibility Analysis, to the Chief Counsel 
for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 22

    Communications common carriers, Radio.

47 CFR Part 24

    Personal communications services, Radio.

47 CFR Part 27

    Wireless communications services.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-20928 Filed 10-18-05; 8:45 am]

BILLING CODE 6712-01-P