[Federal Register: September 21, 2006 (Volume 71, Number 183)]
[Proposed Rules]
[Page 55149-55156]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21se06-13]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 27, and 90
[WT Docket Nos. 06-169, 96-86; FCC 06-133]
Revisions to Upper 700 MHz Guard Band Licenses; Development of
Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks comment on possible changes to its rules governing
existing and prospective Upper 700 MHz Guard Bands licensees as well as
possible revision to its Upper 700 MHz band plan in order to promote
the most efficient and effective use of the spectrum. Specifically, the
Commission requests comment on whether to extend the Commission's
Secondary Markets spectrum leasing policies to the Guard Bands, whether
to increase band manager flexibility for incumbents and prospective
licensees; whether to eliminate the prohibition on deploying cellular
architectures in the Guard
[[Page 55150]]
Bands; and whether to change the current Adjacent Channel Power (ACP)
limits in the Guard Bands. Further, the Commission seeks comment on
whether reclaimed spectrum (42 Guard Bands licenses that were returned
from Nextel) should be re-licensed as commercial spectrum, or
reallocated for critical infrastructure industries or public safety
entities. Finally, the Commission seeks comment on proposals to modify
the existing Upper 700 MHz band plan with respect to the Guard Bands,
or to preserve the existing band plan.
DATES: Comments are due on or before October 23, 2006 and reply
comments are due on or before November 6, 2006.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW., TW-
A325, Washington, DC 20554. See SUPPLEMENTARY INFORMATION for filing
instructions.
FOR FURTHER INFORMATION CONTACT: Paul Moon of the Mobility Division,
Wireless Telecommunications Bureau, at (202) 418-1793, e-mail at
Paul.Moon@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 06-133, in WT Docket Nos. 06-169 and 96-86,
adopted on September 6, 2006, and released on September 8, 2006. The
full text of this document is available for inspection and copying
during normal business hours in the FCC Reference Information Center,
445 12th Street, SW., Washington, DC 20554. The complete text may be
purchased from the FCC's copy contractor, Best Copy and Printing, Inc.,
445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone
http://www.fcc.gov. Alternative formats are available to persons with
disabilities (braille, large print, electronic files and audio format)
by e-mailing fcc504@fcc.gov, or calling the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis of the Notice of Proposed Rulemaking
1. Several factors suggest that the Commission should re-examine
its spectrum management policies regarding the 700 MHz Guard Bands. In
the 800 MHz Report and Order in WT Docket No. 02-55, the Commission
reclaimed 700 MHz Guard Bands B Block licenses surrendered by Nextel
Communications, Inc., as part of the Commission's 800 MHz re-banding
process aimed at improving public safety communications. See Improving
Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55,
Report and Order, 19 FCC Rcd 14969 (2004). Although the Commission
reclaimed the Nextel licenses in that Order, it deferred the resolution
of how best to use the surrendered 700 MHz spectrum. Further, the
Commission's required annual Guard Band Manager reports, as well as
comments from existing licensees, indicate that the 700 MHz Guard Bands
spectrum is under-utilized. Finally, Congress recently created greater
certainty regarding the availability of unencumbered 700 MHz spectrum
for wireless commercial and public safety licensees--including the
Guard Bands--by establishing a ``hard date'' of February 17, 2009, by
which time incumbent analog broadcasters must vacate the spectrum. See
Deficit Reduction Act of 2005, Public Law 109-171, 120 Stat. 4 (2006)
(``DTV Act''). As set forth in detail below, the Commission seeks
comment on proposed uses of the reclaimed spectrum, as well as possible
revisions to service rules and band plan that would enable the highest
and best use of this service.
2. The Commission seeks comment on proposed revisions to service
and technical rules that could promote greater operational, technical
and regulatory flexibility for the 700 MHz Guard Bands service
generally. The NPRM seeks comment on whether the Commission should
continue to apply the band manager rules for purposes of any re-auction
of the former Nextel spectrum, or whether it would be more appropriate
to eliminate ``band manager only'' eligibility restrictions and extend
the Commission's current Secondary Markets spectrum leasing policies to
this spectrum. The Commission requests comment on whether it should
consider making both regulatory options available to bidders in the
event the reclaimed Nextel spectrum is re-auctioned. For that matter,
the Commission asks commenters to address whether it remains necessary
in the public interest to permit only band managers to be licensed in
the 700 MHz Guard Bands, which requires leasing to third parties to
guarantee spectrum access through negotiated spectrum use agreements,
while prohibiting the band manager from offering service or using the
spectrum for its internal purposes. The Commission also seeks comment
on an alternative approach involving relaxation of certain band manager
restrictions (e.g., leasing to affiliates) while retaining the overall
concept. Further, the NPRM seeks comment on whether the Commission
should modify its rules pertaining to incumbent 700 MHz Guard Bands
licensees in the event the Commission determines that the band manager
concept should not be applied to any re-licensing of the Nextel
returned spectrum.
3. In addition to seeking public comment regarding eligibility and
use restrictions, the Commission also requests comment on whether it is
appropriate to remove or modify certain technical rules that were
originally put in place to minimize interference to public safety
operations. For example, the NPRM seeks comment on whether the
restriction on cellular architecture in the Guard Bands should be
maintained, eliminated or more clearly defined. The NPRM requests
comment on a proposal that advocates the removal of the Commission's
cellular architecture prohibition in favor of a power flux density
(PFD) limit used in conjunction with improved receiver technology.
Alternatively, the Commission also seeks comment on whether it should
reduce the 1 kilowatt maximum Effective Radiated Power (ERP) limit for
those 700 MHz Guard Band base stations implemented in a cellular
architecture, either applied independently or in conjunction with a PFD
limit as a means of mitigating interference to public safety
operations. Further, in order to determine the possible impact of
removing or modifying the cellular architecture ban on all affected
parties (Guard Bands licensees as well as public safety entities), the
Commission seeks comment on the feasibility of completing the required
coordination with public safety operations of the numerous sites
involved in a cellular architecture.
4. The NPRM also requests comment on whether the Commission should
reconsider the existing out-of-band emission (OOBE) limits used for the
700 MHz Guard Bands. Specifically, the Commission seeks comment on
whether it should replace its current use of Adjacent Channel Power
(ACP) limits with the OOBE limits that apply to the Upper 700 MHz C and
D Blocks. See 47 CFR 27.53(c)(1) and (2). ACP limits differ from OOBE
limits in that they require several different power attenuation levels
at specific points displaced from the center frequency of a channel.
OOBE limits, on the other hand, require that out-of-band signal power
be attenuated to ensure that the maximum out-of-band signal power
maintains an established, constant relation to the transmitter power.
The Commission also seeks comment on the emission limits necessary to
protect public safety operations in the event
[[Page 55151]]
broadband operations are permitted in the public safety block, pursuant
to a separate open proceeding. See Development of Operational,
Technical and Spectrum Requirements for Meeting Federal, State and
Local Public Safety Communications Requirements Through the Year 2010,
Eighth Notice of Proposed Rulemaking, WT Docket Nos. 96-86 and 05-157,
21 FCC Rcd 3668 (2006). Further, in the event that the Commission
maintains the current ACP limits and does not apply OOBE limits to the
Guard Bands, the NPRM asks whether the Commission's rules should be
modified to account for operations wider than 150 kilohertz, and
requests that commenters propose attenuation values for band widths
greater than 150 kilohertz that will maintain adequate protection for
public safety operations.
5. Apart from the proposed revisions to service and technical
rules, the NPRM also requests comment on whether the Commission should
re-examine the current 700 MHz Guard Bands spectrum plan. The
Commission requests comment on a proposal submitted by Motorola, Inc.
and the United Telecommunications Council (Motorola/UTC). The Motorola/
UTC plan proposes that the Commission reallocate one megahertz of the
Guard Bands B Block for critical infrastructure interoperability and
retain the remainder of the B Block as a guard band. The Commission
also seeks comment on alternative proposals filed by existing Guard
Band Managers, including Access Spectrum, L.L.C., Pegasus Guard Band,
L.L.C., Columbia Capital Equity Partners III, L.P. and PTPMS II
Communications, L.L.C. These proposals ask the Commission to reallocate
the 700 MHz Guard Bands, as well as the adjacent 700 MHz public safety
spectrum, in order to accommodate broadband operations by both Guard
Bands licensees and public safety entities. Because each of the
proposals would require the Commission to reclaim the B Block spectrum,
the NPRM requests comment on how best to clear the block of existing
licensees in the event that the Commission concludes that it is in the
public interest to reconfigure the band plan. The NPRM tentatively
concludes, however, that it would not be appropriate to adopt any
proposal that entails a shift in the narrowband channels within the
public safety band unless two issues--the costs of reprogramming
existing public safety radios, and international border coordination--
are resolved expeditiously. The NPRM also tentatively concludes that
any decision to shift the existing Upper 700 MHz band plan in a way
that affects ``recovered analog spectrum'' within the DTV transition
would need to be made in time to allow the Commission to conduct the
auction of recovered spectrum in accordance with the relevant statutory
requirements.
Procedural Matters
Initial Regulatory Flexibility Analysis
6. As required by section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the proposals considered in this document. The text of the IRFA is set
forth below. Written public comments are requested on this IRFA.
Comments must be filed in accordance with the same filing deadlines for
comments on this NPRM, and they should have a separate and distinct
heading designating them as responses to the IRFA. The Commission will
send a copy of the NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration in accordance with
section 603(a) of the Regulatory Flexibility Act.
Ex Parte Rules--Permit-but-Disclose Proceeding
7. This is a ``permit-but-disclose'' notice and comment rulemaking
proceeding in accordance with the Commission's ex parte rules. See 47
CFR 1.1200, and 1.1206. Persons making oral ex parte presentations are
reminded that memoranda summarizing the presentations must contain
summaries of the substance of the presentations and not merely a
listing of the subjects discussed. More than a one- or two-sentence
description of the views and arguments presented is generally required.
See 47 CFR 1.1206(b)(2). Other rules pertaining to oral and written
presentations are set forth in Sec. 1.1206(b) of the Commission's
rules as well.
Comment Dates
8. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, and 1.419, interested parties may file comments in
response to this NPRM no later than on or before 30 days after Federal
Register publication. Reply comments to these comments may be filed no
later than on or before 45 days after Federal Register publication. All
pleadings are to reference WT Docket Nos. 06-169 and 96-86. Comments
may be filed using the Commission's Electronic Comment Filing System
(ECFS) or by filing paper copies. Parties are strongly encouraged to
file electronically. See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
9. Comments filed through the ECFS can be sent as an electronic
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Parties
should transmit one copy of their comments to the dockets in the
caption of this rulemaking. In completing the transmittal screen,
commenters should include their full name, U.S. Postal Service mailing
address, and the applicable dockets or rulemaking number. Parties may
also submit an electronic comment via Internet e-mail. To get filing
instructions for e-mail comments, commenters should send and e-mail to
ecfs@fcc.gov and should include the following words in the body of the
message, ``get form .'' A sample form and
directions will be sent in reply.
10. Parties choosing to file by paper must file an original and
four copies of each filing in WT Docket Nos. 06-169 and 96-86. 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). If more than one docket or rulemaking number appears in
the caption of this proceeding, commenters must submit two additional
copies for each additional docket or rulemaking number. The
Commission's mail 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 mail, Express Mail, and Priority Mail should be
addressed to 445 12th Street, SW., Washington, DC 20554. All filings
must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission.
11. Comments submitted on diskette should be on a 3.5-inch diskette
formatted in an IBM-compatible format using Word for Windows or
compatible software. The diskette should be clearly labeled with the
commenter's name, proceedings (including the docket numbers, in this
case WTB Docket Nos. 06-169 and 96-86), type of pleading
[[Page 55152]]
(comments or reply comments), date of submission, and the name of the
electronic file on the diskette. The label should also include the
following phrase: ``Disk Copy--Not an Original.'' Each diskette should
contain only one party's pleadings, preferably in a single electronic
file.
12. All parties must file one copy of each pleading electronically
or by paper to each of the following: (1) The Commission's duplicating
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room
CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile
(202) 488-5563, or via e-mail at FCC@BCPIWEB.COM.
13. Comments and reply comments and any other filed documents in
this matter may be obtained from Best Copy and Printing, Inc., in
person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via
telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-
mail at FCC@BCPIWEB.COM. The pleadings will be also available for
public inspection and copying during regular business hours in the FCC
Reference Information Center, Room CY-A257, 445 12th Street, SW.,
Washington, DC 20554, and through the Commission's Electronic Filing
System (ECFS) accessible on the Commission's Web site, http://www.fcc.gov
.
14. Commenters who file information that they believe is
proprietary may request confidential treatment pursuant to Sec. 0.459
of the Commission's rules. Commenters should file both their original
comments for which they request confidentiality and redacted comments,
along with their request for confidential treatment. Commenters should
not file proprietary information electronically. See Examination of
Current Policy Concerning the Treatment of Confidential Information
Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998),
Order on Reconsideration, 14 FCC Rcd 20128 (1999). Even if the
Commission grants confidential treatment, information that does not
fall within a specific exemption pursuant to the Freedom of Information
Act (FOIA) must be publicly disclosed pursuant to an appropriate
request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission
may grant requests for confidential treatment either conditionally or
unconditionally. As such, we note that the Commission has the
discretion to release information on public interest grounds that does
fall within the scope of a FOIA exemption.
15. To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Further Information
16. The World Wide Web addresses/URLs that the Commission gives
here were correct at the time this document was prepared but may change
over time. They are included herein in addition to the conventional
citations as a convenience to readers. The Commission is unable to
update these URLs after adoption of this NPRM, and readers may find
some URLs to be out of date as time progresses. The Commission also
advises readers that the only definitive text of any FCC document is
the one that is published in the FCC Record. In any case of discrepancy
between the electronic documents cited here and the FCC Record, the
version in the FCC Record is definitive.
Initial Paperwork Reduction Act of 1995 Analysis
17. This NPRM contains proposed new and/or modified information
collections. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the proposed and/or modified
information collections contained in this NPRM, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Comments should
address: (a) Whether the proposed and/or modified collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
18. Written comments by the public on the proposed and/or modified
information collections are due October 23, 3006. Written comments must
be submitted by the Office of Management and Budget (OMB) on the
proposed and/or modified information collections on or before November
6, 2006. In addition to filing comments with the Secretary, a copy of
any comments on the proposed and/or modified information collections
contained herein should be submitted to Judith B. Herman, Federal
Communications Commission, Room 1-B441, 445 12th Street, SW.,
Washington, DC 20554, or via the Internet to Judith-B.Herman@fcc.gov,
and to Allison E. Zaleski, OMB Desk Officer, 10236 NEOB, 725 17th
Street, NW., Washington, DC 20503, or via the Internet to
Allison_E._Zaleski@omb.eop.gov.
Initial Regulatory Flexibility Analysis
19. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
603, the Commission has prepared this Initial Regulatory Flexibility
Analysis (IRFA) regarding the possible significant economic impact of
the policies and rules proposed in this NPRM on a substantial number of
small entities. Written public comments are requested regarding this
IRFA. Comments must be identified as responses to this IRFA and must be
filed by the deadlines for comments identified in the NPRM. The
Commission will send a copy of this NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration. See 5
U.S.C. 603(a). In addition, this NPRM and IRFA (or summaries thereof)
will be published in the Federal Register.
Need for, and Objectives of, the Proposed Rules
20. In the 800 MHz Report and Order in WT Docket No. 02-55, the
Commission reclaimed 700 MHz Guard Bands B Block licenses surrendered
by Nextel Communications, Inc., as part of the Commission's 800 MHz re-
banding process aimed at improving public safety communications. See
Improving Public Safety Communications in the 800 MHz Band, WT Docket
No. 02-55, Report and Order, 19 FCC Rcd 14969 (2004). Although the
Commission reclaimed the Nextel licenses in that Order, it deferred the
resolution of how best to use the surrendered 700 MHz spectrum.
Further, the Commission's required annual Guard Band Manager reports as
well as comments from existing licensees indicate that the 700 MHz
Guard Bands spectrum is under-utilized. Also, Congress recently created
greater certainty regarding the availability of unencumbered 700 MHz
spectrum for wireless commercial and public safety licensees--including
the Guard Bands--by establishing a ``hard date'' of February 17, 2009,
by which time incumbent analog broadcasters
[[Page 55153]]
must vacate the spectrum. See Deficit Reduction Act of 2005, Public Law
109-171, 120 Stat. 4 (2006) (``DTV Act''). These factors suggest that
the Commission should re-examine its spectrum management policies
regarding the 700 MHz Guard Bands. As set forth in detail below, the
Commission seeks comment on proposed uses of the reclaimed spectrum, as
well as possible revisions to service rules and band plan that would
enable the highest and best use of this service.
21. Band Manager Status. The Commission seeks comment on proposed
revisions to service and technical rules that could promote greater
operational, technical and regulatory flexibility for the 700 MHz Guard
Bands service generally. For example, the NPRM seeks comment on the
relative merits of the Secondary Markets leasing and band manager
leasing mechanisms. The NPRM seeks comment on whether the Commission
should continue to apply the band manager rules for purposes of any re-
auction of the former Nextel spectrum, or whether it would be more
appropriate to eliminate ``band manager only'' eligibility restrictions
and extend the Commission's current Secondary Markets spectrum leasing
policies to this spectrum. The Commission requests comment on whether
it should consider making both regulatory options available to bidders
in the event the reclaimed Nextel spectrum is re-auctioned.
22. The Commission also asks commenters to address whether it
remains necessary in the public interest to permit only band managers
to be licensed in the 700 MHz Guard Bands, which requires leasing to
third parties to guarantee spectrum access through negotiated spectrum
use agreements, while prohibiting the band manager from offering
service or using the spectrum for its internal purposes. The Commission
also seeks comment on an alternative approach involving relaxation of
certain band manager restrictions while retaining the overall concept.
For example, the NPRM asks whether the Commission should remove or
lessen the restriction on leasing to affiliates. Further, the NPRM
seeks comment on whether the Commission should modify its rules
pertaining to incumbent 700 MHz Guard Bands licensees in the event the
Commission determines that the band manager concept should not be
applied to any re-licensing of the Nextel returned spectrum.
23. Cellular System Architecture. In addition to seeking public
comment regarding eligibility and use restrictions, the Commission also
requests comment on whether it is appropriate to remove or modify
certain technical rules that were originally put in place to minimize
interference to public safety operations. For example, the NPRM seeks
comment on whether the restriction on cellular architecture in the
Guard Bands should be maintained, eliminated or more clearly defined.
The Commission seeks comment on whether its ban on the use of cellular
architecture in the 700 MHz Guard Bands should be removed or revised in
ways that will provide all Guard Bands licensees, including small
businesses, with greater operational flexibility yet ensure adequate
interference protection to public safety operations. The NPRM requests
comment on a proposal that advocates the removal of the Commission's
cellular architecture prohibition in favor of a power flux density
(PFD) limit used in conjunction with improved receiver technology. The
NPRM asks whether, in the event that the Commission eliminates the
cellular architecture restriction, the Commission should implement a
PFD limit as a means to mitigate interference to public safety
operations. Alternatively, the Commission also seeks comment on whether
it should reduce the 1 kilowatt maximum Effective Radiated Power (ERP)
limit for those 700 MHz Guard Band base stations implemented in a
cellular architecture, either applied independently or in conjunction
with a PFD limit as a means of mitigating interference to public safety
operations. Further, in order to determine the possible impact of
removing or modifying the cellular architecture ban on all affected
parties (Guard Bands licensees as well as public safety entities), the
Commission seeks comment on the feasibility of completing the required
coordination with public safety operations of the numerous sites
involved in a cellular architecture.
24. Emission Limits. The NPRM also requests comment on whether the
Commission should reconsider the existing out-of-band emission (OOBE)
limits used for the 700 MHz Guard Bands. Specifically, the Commission
seeks comment on whether it should replace its current use of Adjacent
Channel Power (ACP) limits with the OOBE limits that apply to the Upper
700 MHz C and D Blocks. The Commission also asks commenters to provide
comment on the emission limits necessary to protect public safety
operations in the event broadband operations are permitted in the
public safety block. See Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, Eighth Notice
of Proposed Rulemaking, WT Docket Nos. 96-86 and 05-157, 21 FCC Rcd
3668 (2006). Further, in the event that the Commission maintains the
current ACP limits and does not apply OOBE limits to the Guard Bands,
the NPRM asks whether the Commission's rules should be modified to
account for operations wider than 150 kilohertz, and requests that
commenters propose attenuation values for band widths greater than 150
kilohertz that will maintain adequate protection for public safety
operations.
25. Band Plan Proposals. The NPRM requests comment on whether the
Commission should re-examine the current 700 MHz Guard Bands spectrum
plan. The Commission requests comment on a proposal submitted by
Motorola, Inc. and the United Telecommunications Council (Motorola/
UTC). The Motorola/UTC proposal states that the nation's critical
infrastructure industries (CII) require wireless communications that
are reliable, ubiquitous in coverage, and interoperable with public
safety entities during emergencies, particularly where CII entities are
among first responders to a disaster or emergency. The Motorola/UTC
plan proposes that the Commission reallocate one megahertz of the Guard
Bands B Block for critical infrastructure interoperability and retain
the remainder of the B Block as a guard band. The Commission also seeks
comment on alternative proposals alternative proposals filed by
existing Guard Band Managers, including Access Spectrum, L.L.C.,
Pegasus Guard Band, L.L.C., Columbia Capital Equity Partners III, L.P.
and PTPMS II Communications, L.L.C. The proposals ask the Commission to
reallocate the 700 MHz Guard Bands and public safety spectrum in order
to accommodate broadband operations by Guard Bands licensees as well as
public safety entities. Because each of the proposals would require the
Commission to reclaim the B Block spectrum, the NPRM requests comment
on how best to clear the block of existing licensees in the event that
the Commission concludes that it is in the public interest to
reconfigure the band plan. The NPRM tentatively concludes, however,
that it would not be appropriate to adopt any proposal that entails a
shift in the narrowband channels within the public safety band unless
two issues--the costs of reprogramming existing public safety
[[Page 55154]]
radios, and international border coordination--are resolved
expeditiously. The NPRM also tentatively concludes that any decision to
shift the existing Upper 700 MHz band plan in a way that affects
``recovered analog spectrum'' within the DTV transition would need to
be made in time to allow the Commission to conduct the auction of
recovered spectrum in accordance with the relevant statutory
requirements.
Legal Basis
26. The proposed actions are authorized under sections 1, 2, 4(i),
5(c), 7, 10, 201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310,
311, 314, 316, 319, 324, 332, 333, 336 and 337 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 155(c), 157, 160,
201, 202, 208, 214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316,
319, 324, 332, 333, 336 and 337.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
27. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' 5 U.S.C. 601(6). In addition, the term
``small business'' has the same meaning as the term ``small business
concern'' under the Small Business Act. 5 U.S.C. 601(3) (incorporating
by reference the definition of ``small-business concern'' in the Small
Business Act, 15 U.S.C. 632). 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'').
28. 700 MHz Guard Band Licensees. The term ``small business'' in
the context of Cellular and Other Wireless Telecommunications Companies
is defined as companies employing no more than 1,500 persons. 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 the 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.
29. Governmental Entities. 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.'' 5 U.S.C. 601(5). 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.
30. Public Safety Radio Licensees. As a general matter, Public
Safety Radio licensees include police, fire, local government, forestry
conservation, highway maintenance, and emergency medical services. See
subparts A and B of part 90 of the Commission's rules, 47 CFR 90.1-
90.22. The SBA rules contain a definition for cellular and other
wireless telecommunications companies which encompass business entities
engaged in wireless communications employing no more than 1,500
persons. See 13 CFR 121.201. According to Census Bureau data for 2002,
in this category there was a total of 8,863 firms that operated for the
entire year. Of this total, 401 firms had 100 or more employees, and
the remainder had fewer than 100 employees. With respect to local
governments, in particular, since many governmental entities as well as
private businesses comprise the licensees for these services, we
include under public safety services the number of government entities
affected.
31. Wireless Communications Equipment Manufacturers. The SBA has
established a small business size standard for radio and television
broadcasting and wireless communications equipment manufacturing. Under
the standard, firms are considered small if they have 750 or fewer
employees. See 13 CFR 121.201. Census Bureau data for 1997 indicates
that, for that year, there were a total of 1,215 establishments in this
category. Of those, there were 1,150 that had employment under 500, and
an additional 37 that had employment of 500 to 999. The Commission
estimates that the majority of wireless communications equipment
manufacturers are small businesses. We note, however, that the major
providers of 700 MHz equipment, Motorola and M/A-COM Private Radio
Systems, Inc., are not considered small businesses.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
32. This NPRM seeks comment on possible revisions to the 700 MHz
Guard Bands service rules that may modify reporting, recordkeeping and
other compliance requirements. The Commission requests comment on
proposals to apply its Secondary Markets leasing regime to reclaimed
700 MHz Guard Bands spectrum as well as to existing licensees.
Application of Secondary Markets leasing to the 700 MHz Guard Bands
would require a modification of current reporting and recordkeeping
requirements. Further, as noted, the NPRM seeks comment on whether to
eliminate its prohibition on cellular architecture in the 700 MHz Guard
Bands. In light of the numerous sites that are involved in a cellular
architecture, this proposal could lead to more intensive coordination
with public safety operations if the ban is lifted.
Steps Taken To Minimize Significant Economic Impact on Small Entities
and Significant Alternatives Considered
33. 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. See 5 U.S.C. 603(c).
34. Generally, the Commission's primary objective in issuing the
NPRM is to determine the most efficient and effective use of the
reclaimed Nextel spectrum and the 700 MHz Guard Bands. The Commission
invites comment on ways in which the Commission can achieve its goal of
encouraging operational, technical and regulatory flexibility for all
licensees, including small entities, while at the same time imposing
minimal burdens on small entities. The Commission seeks comment on the
effect the various proposals described in the NPRM will have on small
entities, whether existing or prospective Guard Bands licensees, or
public safety entities. To assist the Commission in its analysis,
commenters are asked to provide information
[[Page 55155]]
regarding which entities would be affected by possible revisions to 700
MHz Guard Band service and technical rules as well as to the 700 MHz
Guard Bands spectrum band plan as described in this NPRM. In
particular, the Commission seeks estimates of how many small entities
might be affected and whether the proposals under consideration would
be overly burdensome to small entities. The following summarizes
significant alternatives considered in the NPRM.
35. Band Manager Status. Under the current rules, the Guard Band
Manager must lease to third parties to guarantee spectrum access
through negotiated spectrum use agreements, while the Guard Band
Manager cannot itself offer service or use the spectrum for its
internal purposes. Additionally, the Guard Band Manager cannot lease
its spectrum to more than 49.9 percent of its affiliates in the
licensed geographic area. These restrictions were created to promote
the leasing of spectrum to third parties, many of whom would be small
entities that lack the capacity or need to acquire an entire service
area. The NPRM seeks comment on the relative merits of the Secondary
Markets leasing and band manager leasing policies. Noting that certain
Guard Bands licensees argue that the current band manager rules have
resulted in the inefficient use of the spectrum, the NPRM asks whether
the Commission should retain the existing Guard Band Manager rules or
whether the Commission should apply a different regulatory structure,
such as the Secondary Market rules, to the Guard Bands spectrum
generally. Alternatively, the NPRM asks whether the Commission should
continue to apply the band manager rules for purposes of any re-auction
of the former Nextel spectrum, or even if existing rules are retained
for existing licensees. The NPRM also asks whether it should permit
existing or new licensees to choose among several regulatory options
for managing the Guard Bands.
36. The NPRM also seeks comment on an alternative approach
involving the relaxation of certain band manager eligibility
restrictions, while retaining the overall existing band manager
concept. For example, the NPRM ask whether the Commission should remove
or lessen the restriction that band managers may not lease more than
49.9 percent of their spectrum in a geographic area to affiliates.
Alternatively, the Commission asks whether it should change its rules
to permit a band manager to use its licensed spectrum in some capacity
exclusively for internal purposes.
37. Cellular System Architecture. The NPRM seeks comment on whether
the restriction on cellular architecture in the Guard Bands should be
removed or modified in order to facilitate the use of broadband
technology by all Guard Bands licensees, including those qualifying as
small businesses. The Commission seeks comment on a proposal to lift
the cellular architecture prohibition and replace it with a power flux
density (PFD) limit as an alternative means to ensure adequate
interference protection to public safety operations. The NPRM also
seeks comment on another option, applied either independently or in
conjunction with a PFD limit, to reduce the 1 kilowatt maximum ERP
limit for Guard Bands base stations implemented in a cellular
architecture. Noting that reducing ERP limits could minimize the area
of interference surrounding each base station, thereby reducing the
overall potential for interference to adjacent channel public safety
mobiles/portables, the Commission seeks comment as to what base station
ERP limit applied to a Guard Bands system based on a cellular
architecture would adequately protect public safety systems.
38. Emission Limits. The NPRM also requests comment on whether the
Commission should reconsider the existing OOBE limits used for the 700
MHz Guard Bands. The Commission originally applied the current ACP
limits to the Guard Bands because it found that the immediate proximity
of the Guard Bands to the public safety block justifies an application
of the same emission limit for the Guard Bands as applies for emissions
from within the public safety block. In the NPRM, the Commission seeks
comment on the proposal to replace its current use of ACP limits with
OOBE limits. The Commission also seeks comment on the emission limits
necessary to protect public safety operations in the event broadband
operations are permitted in the public safety block. Alternatively, to
the extent that the Commission determines that the use of ACP limits
does not sufficiently guard public safety entities against unwanted
OOBE, the NPRM asks whether the Commission's rules should be modified
to account for operations wider than 150 kilohertz, and requests that
commenters provide attenuation values for bandwidths greater than 150
kilohertz that will maintain adequate protection for public safety
operations. Finally, the NPRM also considers the relative merits of
maintaining the status quo.
39. Band Plan Proposals. The NPRM requests comment on whether the
Commission should re-examine the current 700 MHz Guard Bands spectrum
plan, and asks commenters to consider several alternative band plan
proposals. First, Motorola/UTC requests that the Commission reallocate
the licenses surrendered by Nextel from the Guard Bands B Block as
narrowband channels for critical infrastructure industries in support
of interoperability with public safety entities. Motorola/UTC argue
that one megahertz of the B Block contiguous with the public safety
block could carry narrowband channels dedicated to providing critical
infrastructure entities with the ability to communicate with state and
local agencies. The NPRM seeks comment on the potential benefit of
creating a separate class of interoperability channels, and whether the
proposal should be applied only to the former Nextel spectrum or to all
Guard Bands licenses.
40. The NPRM also seeks comment on a proposal requesting that the
Commission rededicate the relinquished Nextel spectrum for exclusive
public safety use. The NPRM seeks comment on whether there have been
any technical or marketplace developments that may alleviate concerns
that re-designating the spectrum for public safety applications may
result in increased interference to public safety.
41. Alternatively, the Commission also seeks comment on various
proposals from existing Guard Band Managers to revise the Upper 700 MHz
band plan. A consortium consisting of almost all existing Guard Band
Managers filed a White Paper proposing three alternative Upper 700 MHz
band plans with the goal of facilitating broadband communications
inside the Guard Bands. Subsequently, a new consortium, which includes
most of the White Paper proponents, filed the Optimization Plan,
advocating another, more comprehensive band plan proposal that
implicates the Guard Bands as well as the Upper 700 MHz public safety
block.
42. The Optimization Plan proposes, in part, that three megahertz
from the existing B Block should be allocated to the public safety
block as additional spectrum for broadband communications, and that the
remaining Guard Bands spectrum should be consolidated into a new A
Block. The NPRM seeks comment on whether the public interest (including
the interests of small entities) would be served by adoption of the
band plan proposed in the Optimization Plan, and asks for comment on a
number of ``transition'' issues, including timing and cost
considerations associated with a band plan shift, how existing B Block
licenses
[[Page 55156]]
could be reclaimed by the Commission, as well as how a reconfigured and
enlarged A Block should be licensed, in the event the Commission adopts
the Optimization Plan.
43. Further, because the Optimization Plan does not specifically
disclaim or supercede the preceding White Paper band plan proposals,
the Commission seeks comment on the White Paper proposals as well. As
in the case of the Optimization Plan, the White Paper's three proposals
entail some shift in the position of the commercial spectrum blocks in
the Upper 700 MHz Band. The White Paper's three band plan proposals
would increase the existing allocation of one megahertz for the A Block
up to one-and-a-half or two megahertz. In order to facilitate broadband
within an enlarged A Block, the White Paper proposals involve either
eliminating the B Block while adding bandwidth to the A Block and the
public safety block, or reducing the B Block while adding bandwidth to
the A Block. The NPRM seeks comment on whether the Commission should
adopt any of the various White Paper proposals and also requests
comment on the same transition issues raised by consideration of the
Optimization Plan. The NPRM seeks comment on similar transition issues,
including cost, timing and equitable compensation considerations, for
each of the other alternative proposals as well.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
44. None.
Ordering Clauses
45. Pursuant to sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, 208,
214, 301, 302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332,
333, 336 and 337 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 152, 154(i), 155(c), 157, 160, 201, 202, 208, 214, 301,
302, 303, 307, 308, 309, 310, 311, 314, 316, 319, 324, 332, 333, 336
and 337, this Notice of Proposed Rulemaking is hereby adopted.
46. 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 this Notice of Proposed
Rulemaking on or before 30 days after publication in the Federal
Register, and reply comments on or before 45 days after publication in
the Federal Register.
47. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Part 1
Administrative practice and procedure, Communications common
carriers.
47 CFR Part 27
Communications equipment, Radio.
47 CFR Part 90
Radio, Reporting and recordkeeping requirements.
Federal Communication Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 06-7912 Filed 9-20-06; 8:45 am]
BILLING CODE 6712-01-P