[Federal Register: October 26, 2005 (Volume 70, Number 206)]
[Rules and Regulations]
[Page 61742-61747]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc05-16]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 2
[ET Docket No. 00-258; FCC 05-172]
Advanced Wireless Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document reallocates the 2155-2160 MHz band for Fixed and
Mobile services and designates the 2155-2175 MHz band for Advanced
Wireless Service (AWS) use. We continue our ongoing efforts to promote
spectrum utilization and efficiency with regard to the provision of new
services, including Advanced Wireless Services (AWS).
DATES: Effective November 25, 2005.
FOR FURTHER INFORMATION CONTACT: Priya Shrinivasan, Office of
Engineering & Technology, (202) 418-7005.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Eighth
Report and Order, ET Docket No. 00-258, FCC 05-172, adopted September
23, 2005, and released September 29, 2005. The full text of this
document is available on the Commission's Internet site at http://www.fcc.gov.
It is also available for inspection and copying during
regular business hours in the FCC Reference Center (Room CY-A257), 445
12th Street, SW., Washington, DC 20554. The full text of this document
also may be purchased from the Commission's duplication contractor,
Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-
B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-
5563; e-mail FCC@BCPIWEB.COM.
Summary of the Report and Order
1. In the Eighth Report and Order (``Eighth R&O'') in ET Docket No.
00-258, the Commission continues its ongoing efforts to promote
spectrum utilization and efficiency with regard to the provision of new
services, including Advanced Wireless Services (AWS). Advanced wireless
systems could provide, for example, a wide range of voice, data and
broadband services over a variety of mobile and fixed networks.
Specifically, the Commission reallocates the 2155-2160 MHz band for
Fixed and Mobile services and designates the 2155-2175 MHz band for AWS
use.
2. Based on the Commission's determination that additional spectrum
is needed for AWS use, and because the characteristics of the 2155-2175
MHz band make it well suited for such use, concludes that designating
this band for AWS will promote efficient use of the spectrum and allow
for the rapid introduction of high-value services in the band. Because
the 2155-2175 MHz band is adjacent to the 2110-2155 MHz and 2175-2180
MHz bands that have already been designated for AWS, an AWS designation
for this band will create 70 MHz of contiguous spectrum that will
promote the rapid introduction of new technologies and service
offerings, and will foster the use of the highest potential spectrum.
Furthermore, designation of the 2155-2175 MHz band for AWS use is
consistent with the Commission's previous decisions to designate
spectrum for AWS on a primary basis to support the types of high
powered mobile applications associated with AWS and Broadband PCS
expansion. In addition, as proposed, the Commission
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allocates the 2155-2160 MHz band to Fixed and Mobile services in order
to allow the provision of AWS in this band. Although commenters did not
explicitly address the Commission's proposal to add a Mobile allocation
to the 2155-2160 MHz band, such support is implicit in their support
for redesignating the 2155-2175 MHz band for AWS use because a Mobile
allocation is essential for the provision of AWS.
3. The Commission notes that it does not decide here how to assign
this new AWS spectrum at 2155-2175 MHz but will consider this issue in
a separate service rules proceeding at a later date. It also notes that
a current bilateral agreement in the 2155-2160/62 kHz band between the
United States and Canada provides for coordinated use of Broadband
Radio Service (BRS) and Educational Broadband Service (EBS) along the
common border. The sharing of the 2160/62-2175 MHz band between the
United States and Canada is covered by Arrangement A of the Agreement
Concerning the Coordination and Use of Radio Frequencies Above Thirty
Megacycles per Second, with Annex, as amended. There are no agreements
with Mexico in the 2155-2175 MHz band. Accordingly, the Commission
notes that there may be a need to negotiate new or modified agreements
to provide for more flexible use of the spectrum with Canada and Mexico
along the common borders.
Final Regulatory Flexibility Analysis
4. As required by the Regulatory Flexibility Act (RFA) \1\ an
Initial Regulatory Flexibility Analysis was incorporated in the Third
Notice of Proposed Rule Making (Third NPRM) in ET Docket 00-258, 68 FR
12015, March 13, 2003.\2\ The Commission sought written public comment
on the proposals in the Third NPRM, including comment on the IRFA. This
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.\3\
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\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C 601 et seq., has been
amended by the Contract With America Advancement Act of 1996, Pub.
L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA).
\2\ Amendment of Part 2 of the Commission's Rules to Allocate
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
Introduction of New Advanced Wireless Services, including Third
Generation Wireless Systems, ET Docket No. 00-258, IB Docket No. 99-
81, Third Report and Order, Third Notice of Proposed Rulemaking and
Second Memorandum Opinion and Order, 18 FCC Rcd 2223 (2003).
\3\ 5 U.S.C. 604.
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A. Need for, and Objectives of, the Eighth Report and Order
5. The Eighth Report and Order (Eighth R&O) reallocates the 2155-
2160 MHz band for Fixed and Mobile services and designates the 2155-
2175 MHz band for the provision of advanced wireless services (AWS).
The Eighth R&O is the latest in a series of decisions in ET Docket 00-
258 allocating spectrum that can be used for the provision of new and
innovative wireless communications services that we have collectively
referred to as ``AWS.'' The provision of this spectrum serves the
public interest by promoting the rapid deployment of efficient radio
communications facilities and supports the goals of Section 7 of the
Communications Act,\4\ which sets forth a policy of encouraging the
provision of new technologies and services to the public.
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\4\ 47 U.S.C. 157.
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B. Summary of Significant Issues Raised by Public Comments in Response
to the Supplemental IRFA
6. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
C. Description and Estimate of the Number of Small Entities To Which
Rules Will Apply
7. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of entities that will be affected
by the rules.\5\ The RFA defines ``small entity'' as having the same
meaning as the term ``small business,'' ``small organization,'' and
``small governmental jurisdiction.'' \6\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act, unless the Commission has developed one
or more definitions that are appropriate to its activities.\7\ Under
the Small Business Act, a ``small business concern'' is one that: (1)
Is independently owned and operated; (2) is not dominant in its field
of operation; and (3) meets any additional criteria established by the
Small Business Administration (SBA).\8\
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\5\ 5 U.S.C. 603(b)(3), 604(a)(3).
\6\ 5 U.S.C. 601(6).
\7\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency after consultation with the Office of Advocacy of
the Small Business Administration and after opportunity for public
comment, established one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition in the Federal Register.''
\8\ 15 U.S.C. 632.
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8. Multipoint Distribution Service, Multichannel Multipoint
Distribution Service. Multichannel Multipoint Distribution Service
(MMDS) systems, often referred to as ``wireless cable,'' transmit video
programming to subscribers using the microwave frequencies of
Multipoint Distribution Service (MDS) and Instructional Television
Fixed Service (ITFS).\9\ 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.\10\ The MDS auction resulted in 67
successful bidders obtaining licensing opportunities for 493 Basic
Trading Areas (BTAs).\11\ 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.\12\
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\9\ Amendment of Parts 21 and 74 of the Commission's Rules with
Regard to Filing Procedures in the Multipoint Distribution Service
and in the Instructional Television Fixed Service and Implementation
of Section 309(j) of the Communications Act--Competitive Bidding,
Report and Order, 10 FCC Rcd 9589, 9593, paragraph 7 (1995) (``MDS
Auction R&O''). The MDS and ITFS was renamed the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS), respectively.
See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's
Rules to Facilitate the Provision of Fixed and Mobile Broadband
Access, Educational and Other Advanced Services in the 2150-2162 MHz
Band, WT Docket No. 03-66, Report and Order and Further Notice of
Proposed Rulemaking, 19 FCC Rcd 14165 (2004).
\10\ See Letter to Margaret Wiener, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, FCC, from
Gary Jackson, Assistant Administrator for Size Standards, Small
Business Administration (dated Mar. 20, 2003) (noting approval of
$40 million size standard for MDS auction).
\11\ Basic Trading Areas (BTAs) were designed by Rand McNally
and are the geographic areas by which MDS was auctioned and
authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, paragraph 34.
\12\ 47 U.S.C. 309(j). Hundreds of stations were licensed to
incumbent MDS licensees prior to implementation of section 309(j) of
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business
size standard for ``other telecommunications'' (annual receipts of
$12.5 million or less). See 13 CFR 121.201, NAICS code 517910.
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9. In addition, the SBA has developed a small business size
standard for Cable and Other Program Distribution,\13\
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which includes all such companies generating $12.5 million or less in
annual receipts.\14\ According to Census Bureau data for 1997, there
were a total of 1,311 firms in this category that had operated for the
entire year.\15\ 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.\16\ Consequently, we
estimate that the majority of providers in this service category are
small businesses that may be affected by the proposed rules and
policies. Because the Commission's action only affects MDS operations
in the 2155-2160/62 MHz band, the actual number of MDS providers who
will be affected by the proposed reallocation will only represent a
small fraction of these small businesses.
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\13\ 13 CFR 121.201, NAICS code 517510.
\14\ Id.
\15\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4 (issued October 2000).
\16\ Id.
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10. Fixed Microwave Services. Microwave services include common
carrier,\17\ private-operational fixed,\18\ and broadcast auxiliary
radio services.\19\ At present, there are approximately 36,708 common
carrier fixed licensees and 59,291 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 the FRFA, we will use the SBA's
definition applicable to Cellular and other Wireless Telecommunications
companies--i.e., an entity with no more than 1,500 persons.\20\
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.\21\ Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.\22\ Thus, under
this size standard, majority of firms can be considered small. We note
that the number of firms does not necessarily track the number of
licensees. We estimate that all of the Fixed Microwave licensees
(excluding broadcast auxiliary licensees) would qualify as small
entities under the SBA definition.
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\17\ 47 CFR part 101 et seq. (formerly, part 21 of the
Commission's rules) for common carrier fixed microwave services
(except MDS).
\18\ Persons eligible under parts 80 and 90 of the Commission's
rules can use Private-Operational Fixed Microwave services. See 47
CFR Parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\19\ Auxiliary Microwave Service is governed by Part 74 of Title
47 of the Commission's rules. See 47 CFR, part 74 et seq. Available
to licensees of broadcast stations and to broadcast and cable
network entities, broadcast auxiliary microwave stations are used
for relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\20\ 13 CFR 121.201, NAICS code 517212.
\21\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Employment Size of Firms Subject to Federal Income
Tax: 1997,'' Table 5 (issued Oct. 2000).
\22\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is ``Firms with 1,000
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
11. The Eighth R&O reallocates the 2155-2160 MHz band and
designates the 2155-2175 MHz band to support the introduction of new
AWS applications. The item does not propose service rules. The ultimate
use of the band will be determined by future proceedings that adopt
specific service rules and, more generally, by market forces operating
within the framework of such rules. Accordingly, the item contains no
new reporting, recordkeeping, or other compliance requirements.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
12. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\23\
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\23\ 5 U.S.C. 603(c).
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13. In the Eighth R&O, we decided to provide additional spectrum to
support the introduction of AWS because doing so will promote the rapid
deployment of efficient radio communications. Another option would have
been to not reallocate or designate the 2155-2160 MHz band. We rejected
this alternative because doing so would have limited our ability to
provide additional spectrum and done little to minimize the potential
economic impact on small entities. Specifically, because incumbent
users in the 2155-2160 MHz band are subject to a transition plan
adopted in a separate proceeding and would ultimately be required to
cease use of spectrum in this band, a decision to not reallocate the
spectrum would only have a minimal, short-term effect on incumbent
users yet make it much more likely that valuable spectrum resources
would lie fallow. Additionally, the provision of additional spectrum
that can be used to support AWS can directly benefit small business
entities by providing new opportunities for the provision of innovative
new fixed and mobile wireless services by such entities.
F. Report to Congress
14. The Commission will send a copy of the Eighth R&O, including
this FRFA, in a report to be sent to Congress pursuant to the
SBREFA.\24\ In addition, the Commission will send a copy of the Eighth
R&O, including the FRFA, to the Chief Counsel for Advocacy of the SBA.
A copy of the Eighth R&O and the FRFA (or summaries thereof) will also
be published in the Federal Register.\25\
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\24\ See 5 U.S.C. 801(a)(1)(A).
\25\ See 5 U.S.C. 604(b).
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Ordering Clauses
15. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g),
303(r), 307, 316, 332 of the Communications Act of 1934, as amended, 47
U.S.C. Sections 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307,
316, and 332, this Eighth Report and Order is Adopted and that part 2
of the Commission's rules is amended, as specified in the regulatory
text, effective November 25, 2005.
16. Pursuant to Section 5(c) of the Communications Act, as amended,
47 U.S.C. 155(c), the Office of Engineering and Technology and the
Wireless Telecommunications Bureau Are Granted Delegated Authority to
implement the requirement set forth in this Order.
17. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Eighth Report
and Order, including the Final Regulatory Flexibility Analysis to the
Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 2
Communications equipment, Reporting and recordkeeping requirements.
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Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rule
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 2 as follows:
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
0
1. The authority citation for part 2 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise
noted.
0
2. Section 2.106, the Table of Frequency Allocations, is amended by
revising page 34.
The revisions read as follows:
Sec. 2.106 Table of Frequency Allocations.
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[FR Doc. 05-21406 Filed 10-25-05; 8:45 am]
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