FR Doc 07-5632

[Federal Register: November 14, 2007 (Volume 72, Number 219)]
[Proposed Rules]
[Page 64013-64018]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no07-24]

[[Page 64013]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 15, 27, 90, and 101

[WT Docket No. 07-195; FCC 07-164]

Service Rules for Advanced Wireless Services in the 2155-2175 MHz
Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we seek comment on service rules for
licensed fixed and mobile services, including Advanced Wireless
Services (AWS), in the 2155-2175 MHz band (AWS-3). We seek comment on
rules for licensing this newly designated spectrum in a manner that
will permit it to be fully and promptly utilized to bring advanced
wireless services to American consumers. Our objective is to allow for
the most effective and efficient use of the spectrum in this band,
while also encouraging development of robust wireless broadband
services. We propose to apply our flexible, market-oriented rules to
the band in order to meet this objective.

DATES: Comments must be filed on or before December 14, 2007, and reply
comments must be filed on or before January 14, 2008.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. You may submit comments, identified by WT Docket
No. 07-195, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.

People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
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: Kevin Holmes, Esq., at 202-418-0564.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, released September 19, 2007. The complete text
of this document, including attachments and related Commission
documents, is available for inspection and copying during normal
business hours in the FCC Reference Center (Room CY-A257), 445 12th
Street, SW., Washington, DC 20554. The complete text of the Notice of
Proposed Rulemaking and related Commission documents may be purchased
from the Commission's copy 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 you may contact BCPI at its
Web site http://www.BCPIWEB.com. When ordering documents from BCPI

please provide the appropriate FCC document number, for example, FCC
07-38. The Notice of Proposed Rulemaking is available on the
Commission's Web site: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-164A1.doc
.

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. 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, 63 FR 24121 (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: 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).

I. Summary of Notice of Proposed Rulemaking

1. In this Notice of Proposed Rulemaking, we consider application,
licensing, operating, and technical rules for Advanced Wireless
Services (AWS) \1\ in the 2155-2175 MHz band (AWS-3). Moreover, because
the available spectrum is one 20-megahertz segment as opposed to two
separate bands, the symmetrical pairing approach previously used by the
Commission for

[[Page 64014]]

AWS spectrum \2\ is not possible. Therefore, among other things, we:
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\1\ Advanced Wireless Services is the collective term we use for
new and innovative fixed and mobile terrestrial wireless
applications using bandwidth that is sufficient for the provision of
a variety of applications, including those using voice and data
(such as Internet browsing, message services, and full-motion video)
content. Although AWS is commonly associated with so-called third
generation (3G) applications and has been predicted to build on the
successes of such current-generation commercial wireless services as
cellular and Broadband Personal Communications Services (PCS), the
services ultimately provided by AWS licensees are limited only by
the Fixed and Mobile designation of the spectrum we allocate for AWS
and the service rules we ultimately adopt for the bands.
\2\ See Service Rules for Advanced Wireless Services in the 1.7
GHz and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18
FCC Rcd 25162 (2003) (AWS-1 Service Rules Report and Order);
modified by Service Rules for Advanced Wireless Services in the 1.7
GHz and 2.1 GHz Bands, WT Docket No. 02.353, Order on
Reconsideration, WT Docket No. 02-353, 20 FCC Rcd 14058 (2005); see
also Service Rules for Advanced Wireless Services in the 1915-1920
MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands; Service
Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz
Bands, WT Docket No. 04-356; WT Docket No. 02-353, Notice of
Proposed Rulemaking, 19 FCC Rcd 19263 (2004) (AWS-2 Service Rules
NPRM).
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[rtrif] Seek comment on the use of an ``uplink/downlink approach''
to licensing the spectrum, which would permit the use of technologies
that allow for both mobile and base transmissions in the band, such as
technologies based on Time Division Duplexing (TDD) or Half-Duplex
Frequency Division Duplexing (HFDD),\3\ and on methods to resolve any
interference challenges that may be associated with such an approach.
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\3\ TDD, for example, places base and mobiles transmissions on
the same channel, but in different time slots, while HFDD uses
separate, adjacent channels in different time slots for base and
mobile transmissions. We note that several of the recently dismissed
applications for licenses in this band, see infra note 5, proposed
technologies that would allow the use of both mobile and base
station transmissions. FDD, on the other hand, employs spectrally
separated base and mobile transmit channels with base and mobile
transmissions occurring at the same time. WiMax is a new
application, which supports TDD, FDD, and HFDD access technologies.
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[rtrif] Seek comment on a ``structured uplink/downlink approach,''
which would permit both mobile-plus-base transmit operations and base
transmit operations, but only in particular parts of the band, as
dictated by the band plan set by the Commission.
[rtrif] Seek comment on a ``downlink approach'' for the AWS-3
spectrum, which would limit use of the 2155-2175 MHz band to base
transmissions only, but would enable licensees to use this spectrum in
combination with other Frequency Division Duplexing (FDD) bands.\4\
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\4\ For example, if the AWS-3 spectrum at 2155-2175 MHz is used
for base-transmit, it could theoretically be paired with mobile-
transmit spectrum from the Personal Communications Services (PCS) at
1850-1910 MHz, AWS-1 at 1710-1755 MHz, proposed AWS-2 spectrum at
1915-1920 MHz or 2020-2025 MHz, or Nextel/1.9 GHz spectrum at 1910-
1915 MHz.
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[rtrif] Seek comment on whether an auction of licenses in a
simplified subset of alternative band plans might best further our
overall goals in this proceeding.
[rtrif] Seek comment on the appropriate license block size for the
2155-2175 MHz band under each of the three technical approaches under
consideration for this band.
[rtrif] Seek comment on whether to license the band using a
geographic area licensing scheme, under our flexible, market-oriented
part 27 rules, as well as on the appropriate geographic license block
size for the band.
[rtrif] Seek comment on interference issues specific to the band
under each of the three technical approaches under consideration for
this band.
[rtrif] Seek comment on whether to adopt a boundary limit approach
to limit co-channel interference that could be caused by AWS licensees
operating in the 2155-2175 MHz band.
[rtrif] Propose that AWS licensees operating in the 2155-2175 MHz
band should be required to coordinate with incumbent Fixed Service (FS)
licensees operating on co-channel and adjacent channel spectrum in the
band prior to initiating operations.
[rtrif] Seek comment on our proposals on the power limits, out-of-
band emission restrictions, and other technical or operational
requirements that might be needed to prevent harmful interference to
operations in adjacent bands.
[rtrif] Seek comment on whether any limit should be placed on the
height-above-average-terrain (HAAT) of base or fixed station antennas
operating in the 2155-2175 MHz band.
[rtrif] Propose to permit any use of this spectrum that is
consistent with the band's fixed and mobile allocations.
[rtrif] Seek comment on whether we should adopt any of the various
specific conditions proposed by parties that filed applications for
operation in this band and other parties, including conditions to
govern the provision of broadband services at particular data rates,
with specific build out requirements, and pricing plans, with potential
access requirements, content restrictions and free access to public
safety entities.\5\ For example, M2Z Networks, Inc. (M2Z), has
suggested that the licensees in this band should be subject to certain
public interest requirements, including the provision of free broadband
Internet service at certain data rates and certain population-based
build out benchmarks. NextWave Broadband, Inc., suggested the
Commission should consider licensing this spectrum in a manner that
would avoid the filing of mutually exclusive applications, and
accordingly allow licensing on a non-auctioned basis.
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\5\ Seven parties filed applications for licenses to provide
service in the 2155-2175 MHz band, which we recently dismissed
without prejudice in an Order released August 31, 2007. See
Applications for License and Authority to Operate in the 2155-2175
MHz Band, WT Docket No. 07-16, Order; Petitions for Forbearance
Under 47 U.S.C. 160, WT Docket No. 07-30, Order, FCC 07-161 (rel.
Aug. 31, 2007) (AWS-3 Applications and Forbearance Petitions Order),
Appeal and Petitions for Reconsideration pending. On May 5, 2006,
M2Z filed an application seeking an exclusive, nationwide, 15-year
license in the 2155-2175 MHz band to operate a wireless broadband
network. Six additional applications for license and authority to
operate in the band were filed in March 2007--by Commnet Wireless,
LLC; McElroy Electronics Corp.; NetfreeUS, LLC; NextWave Broadband,
Inc.; Open Range Communications, Inc.; and TowerStream Corporation.
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[rtrif] Seek comment on the benefits and costs of establishing an
unlicensed regime, either in lieu of a licensed regime or as a
complement to the licensed regime (by permitting an unlicensed
underlay).
[rtrif] Seek comment on using a non-exclusive licensing approach
for this band, similar to the rules adopted in the 3650-3700 MHz band.
[rtrif] Propose that the foreign ownership provisions of Sec.
27.12 should apply to applicants applying for licenses in the 2155-2175
MHz band.
[rtrif] Propose not to impose a spectrum aggregation limit or
eligibility restrictions for the 2155-2175 MHz band.
[rtrif] Note that, to the extent that a licensee in the 2155-2175
MHz band provides a Commercial Mobile Radio Service, such service would
be subject to the provisions of part 20 of the Commission's rules,
including 911/E911 and hearing aid-compatibility (HAC) requirements,
along with the provisions in the rule part under which the license was
issued.
[rtrif] Propose that the threshold for environmental review of
fixed transmission facilities should be an effective radiated power
(ERP) greater than 1000 Watts.
[rtrif] Propose to employ our part 1 competitive bidding rules, if
the Commission establishes a licensing regime that requires the use of
competitive bidding to resolve mutually exclusive applications; seek
comment on whether any of our part 1 rules would be inappropriate or
should be modified for an auction of licenses in this band.
[rtrif] Propose to define a small business as an entity with
average annual gross revenues for the preceding 3 years not exceeding
$40 million, and a very small business as an entity with average annual
gross revenues for the preceding 3 years not exceeding $15 million.
[rtrif] Propose to provide small businesses with a bidding credit
of 15 percent and very small businesses with a bidding credit of 25
percent if we establish non-nationwide service areas, and seek comment
on whether, if we decide to license the 2155-2175 MHz

[[Page 64015]]

band on a nationwide basis, small business credits would be appropriate
for this band.
2. Since 2001, the Commission has designated 130 megahertz of
spectrum for use by advanced wireless services.\6\ Corresponding
service rules have been adopted for 90 megahertz of the spectrum in the
1710-1755 MHz and 2110-2155 MHz bands (AWS-1).\7\ In addition, service
rules have been proposed for another 20 megahertz in the 1915-1920 MHz,
1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands (AWS-2).\8\ In
this Notice of Proposed Rulemaking, the Commission proposes service
rules for an additional 20 megahertz of spectrum for a third AWS block
(AWS-3) at 2155-2175 MHz, adjacent to the 2110-2155 MHz band of AWS-1
and the 2175-2180 MHz band of AWS-2.
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\6\ In the November, 2002 AWS Allocation Second Report and
Order, the Commission identified and reallocated 90 megahertz (1710-
1755 MHz and 2110-2155 MHz bands) to the fixed and mobile services
for AWS. See 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,
Second Report and Order, 17 FCC Rcd 23193 (2002) (AWS Allocation
Second Report and Order). In the September, 2004 AWS Allocation
Sixth Report and Order, the Commission designated 20 megahertz
(1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz
bands) for fixed and mobile services that include AWS. See 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, Sixth Report and Order, Third
Memorandum Opinion and Order and Fifth Memorandum Opinion and Order,
19 FCC Rcd 20720 (2004) (AWS Allocation Sixth Report and Order).
With regard to the 20-megahertz block at 2155-2175 MHz, the 2160-
2165 MHz band was already allocated for non-Federal Government fixed
services and mobile services. See 47 CFR 21, 22, and 101. In the AWS
Allocation Third Report and Order, the 2165-2180 MHz band was
reallocated for fixed and mobile services, including AWS. See
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, Third Report and
Order, Third Notice of Proposed Rulemaking and Second Memorandum
Opinion and Order, 18 FCC Rcd. 2223, 2238 ] 28 (2002) (AWS
Allocation Third Report and Order & NPRM). In 2005, the Commission
allocated 2155-2160 MHz for fixed and mobile services, including
AWS, and designated the entire 2155-2175 MHz band as AWS spectrum.
See 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, Eighth Report and
Order and Fifth Notice of Proposed Rulemaking and Order, 20 FCC Rcd
15866, 15872 ] 9 (2005) (AWS Allocation Eighth Report and Order and
Fifth NPRM).
\7\ See AWS-1 Service Rules Report and Order, supra note 2.
\8\ See AWS-2 Service Rules NPRM, supra note 2.
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3. There are numerous incumbents in the 2155-2175 MHz band, which
contains over 1,800 active licenses. These incumbents consist primarily
of Fixed Microwave Service (FS) and Broadband Radio Service (BRS)
licensees, who are subject to relocation by emerging technology (ET)
licensees (including future AWS-3 licensees). The Commission has
already addressed relocation and cost-sharing issues with respect to
the 2155-2175 MHz band in a separate proceeding based on the assumption
that the AWS-3 band would be exclusively licensed.\9\ Generally,
incumbents retain primary status unless and until an ET licensee
requires use of the spectrum. AWS-3 licensees will be required to
relocate, or share in the cost of a relocation paid for by other AWS
licensees (including, possibly, AWS-1 licensees), until the relocation
and cost sharing rules ``sunset.'' For FS, the rules sunset ten years
after the first ET license is issued in the 2160-2175 MHz band.\10\ For
BRS, the rules sunset 15 years after the first AWS license is issued in
the 2150-2160/62 MHz band.\11\ Although we do not anticipate having to
adopt any further rules regarding these issues, we do seek comment on
whether changes may be necessary in light of the service rules we
adopt.
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\9\ See 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,
Ninth Report and Order and Order, FCC 06-45 (rel. April 21, 2006)
(AWS Ninth R&O). See also AWS Allocation Eighth Report and Order and
Fifth NPRM).
\10\ See 47 CFR 101.79(a)(1) (10-year sunset date); 27 CFR
27.1174 (Termination of Cost-Sharing Obligations).
\11\ See 47 CFR 27.1253(a) (Sunset Provisions).
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Procedural Matters

Ex Parte Rules--Permit-But-Disclose

4. 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.\12\
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\12\ See generally 47 CFR 1.1202, 1.1203, 1.1206.
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Initial Regulatory Flexibility Analysis

5. As required by the Regulatory Flexibility Act of 1980 (RFA),\13\
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules proposed in the NPRM. The analysis is found in
the attached Appendix. We request written public comment on the
analysis. Comments must be filed by the dates listed in this NPRM, and
must have a separate and distinct heading designating them as responses
to the IRFA. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, will send a copy of this NPRM, including
the IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration.
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\13\ 5 U.S.C. 603.
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Initial Paperwork Reduction Analysis

6. This document contains proposed new or modified information
collection requirements. 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 information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Pub. L. 104-13. Public and agency
comments are due 60 days after date of publication in the Federal
Register. Comments should address: (a) Whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002,\14\ we seek specific comment on how we might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.''
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\14\ Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).
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A. Need for, and Objectives of, the Proposed Rules
7. The NPRM contemplates service rules for licensed fixed and
mobile services, including advanced wireless services (AWS), in the
2155-2175 MHz band. These service rules include application, licensing,
operating and technical rules and competitive bidding provisions for
the AWS-3 spectrum band.\15\ Consistent with the Commission's policy
objective of affording licensees the flexibility to deploy new
technologies, to implement service innovations, and to respond to
market forces, the NPRM proposes service rules that provide AWS-3
licensees with the flexibility to provide

[[Page 64016]]

any fixed or mobile service, including advanced wireless services, that
is consistent with the allocations \16\ for this spectrum. To promote
flexibility, the NPRM also proposes to license this spectrum under the
Commission's market-oriented part 27 rules. The substantial flexibility
provided by the part 27 rules would encourage the deployment of a wide
variety of fixed and mobile services. The market-oriented licensing
framework for these bands would ensure that this spectrum is
efficiently utilized and will foster the development of new and
innovative technologies and services, as well as encourage the growth
and development of broadband services, ultimately leading to greater
benefits to consumers.
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\15\ See NPRM, para. 1, supra.
\16\ Id.
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8. The NPRM seeks to adopt rules that will reduce regulatory
burdens, promote innovative services, and encourage flexible use of
this spectrum. Such an approach opens up economic opportunities to a
variety of spectrum users, which could include small businesses. The
NPRM considers various proposals and alternatives partly because the
Commission seeks to minimize, to the extent possible, the economic
impact on small businesses.
9. The NPRM contemplates three different technological approaches.
First, the NPRM contemplates an approach that would allow uplink/
downlink in the band, possibly resulting in an unpaired 20-megahertz
spectrum band that could be used for Time Division Duplexing (TDD) or
Half-Duplex Frequency Division Duplexing (HFDD) based technology.
Second, the Commission could also adopt a structured uplink/downlink
approach where a mix of both base-transmit and mobile-and-base transmit
services would be utilized in the band. Under this approach, some or
portions of the 2155-2175 MHz band could be asymmetrically paired with
other base- and mobile-transmit spectrum blocks with pairings composed
of different bandwidths. Alternatively, the NPRM seeks comment on an
approach that would permit only base transmissions in the band. Under
this approach, some or portions of the 2155-2175 MHz band could be
asymmetrically paired with other base- and mobile-transmit spectrum
blocks with pairings composed of different bandwidths. The Commission
contemplates rules which will determine the appropriate approach to
utilize.
10. Prior to the adoption of the NPRM, the Commission adopted an
Eighth Report and Order, in ET Docket No. 00-258, allocating 2155-2160
MHz for fixed and mobile services, including AWS, and designated the
entire 2155-2175 MHz band as AWS spectrum.\17\ The Commission's goal is
to enable service providers to maximize the use of this spectrum with
minimal transaction costs. Within the limits of the licensed fixed and
mobile allocation, the marketplace and not the Commission will
determine how this spectrum is used. Thus, the NPRM's proposals allow
flexibility for licensees to provide third generation (3G) and other
advanced wireless services in the near term, while fostering innovation
and agility so they can quickly adapt to changes in technological
capabilities and marketplace conditions into the future. It is the
Commission's belief that the licensing and service rules proposed in
the NPRM will benefit consumers by giving them the services and value
that they demand, and thereby provide the new business opportunities
necessary to support continued service enhancements by licensees.
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\17\ See AWS Allocation Eighth Report and Order and Fifth NPRM.
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11. The Commission also contemplates rules which will have the
effect of setting performance requirements. An issue we frame is
whether licensees in the 2155-2175 MHz band should be subject to any
performance requirements in addition to a substantial service
requirement at license renewal. The NPRM notes that in some services
the Commission has imposed minimum coverage requirements on licensees
to ensure that spectrum is used effectively and service is implemented
promptly. A related issue is whether the Commission should establish
any specific coverage requirements in the 2155-2175 MHz band, or
whether coverage criteria should be adopted as one means, but not the
exclusive means, of meeting a substantial service requirement. We
propose for consideration the issue of whether licensees should be
subject to interim performance requirements prior to the end of the
license term.
12. The NPRM also contemplates rules that will allow licensees in
the 2155-2175 MHz band to partition their service areas and to
disaggregate their spectrum. If the Commission permits partitioning,
then the partitioning licensee would have to include with its request a
description of the partitioned service area, a calculation of the
population of the partitioned service area, and the licensed geographic
service area.
13. The NPRM also contemplates rules on a number of technical
issues and licensing obligations. A major concern in this context is
about how best to control in-band and out-of-band interference,
appropriate power limits, RF safety limits, and Canadian and Mexican
coordination.\18\ The NPRM also proposes to permit applicants to
request common carrier status as well as non-common carrier status for
authorization in a single license, rather than to require the applicant
to choose between common carrier and non-common services.\19\
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\18\ See NPRM, para. 1, supra.
\19\ Id.
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14. In addition, the NPRM contemplates operations for licensing the
new services. For example, the FCC is considering whether to license
the AWS-3 spectrum using geographic licensing, as opposed to site-by-
site licensing.
15. The Commission contemplates the appropriate size(s) of the
geographic service area or areas on which licenses should be based. The
Commission also contemplates the benefits and costs of establishing an
unlicensed regime, either in lieu of a licensed regime or as a
complement to a licensed regime, and/or non-exclusive licensing
approach.\20\
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\20\ Id.
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16. Although the Commission does not know precisely what types of
services may be developed in the 2155-2175 MHz band, the Commission
anticipates that the services that will be deployed in the band may
have capital requirements comparable to those in the broadband PCS
service and AWS-1 in the 1710-1755 MHz and 2110-2155 MHz bands because
of their adjacency, or close proximity, to the AWS-3 spectrum band and
the record in related proceedings suggest similar services are being
contemplated for all these bands. In particular, the Commission
anticipates that licensees in the 2155-2175 MHz band will be presented
with issues and capital and other cost requirements similar to those
presented to broadband PCS licensees and licensees in the 1710-1755 MHz
and 2110-2155 MHz bands, including issues and costs involved in
relocating incumbents, and developing markets, technologies, and
services. Because of those anticipated similarities and other technical
and spectral benefits, the Commission is considering the possibility of
uplink/downlink use, or structured uplink/downlink and or downlink use,
involving asymmetrically pairing AWS-3 spectrum with adjacent AWS or
PCS spectrum bands.
17. In light of these similarities, the NPRM concurrently
contemplates the adoption of the same small business size standards for
the 2155-2175 MHz band

[[Page 64017]]

as the Commission adopted for broadband PCS and AWS-1 in the 1710-1755
MHz and 2110-2155 MHz bands. Accordingly, if the Commission adopts
bidding credits, the NPRM proposes to define a small business as an
entity with average annual gross revenues for the preceding three years
not exceeding $40 million, and a very small business as an entity with
average annual gross revenues for the preceding three years not
exceeding $15 million. \21\
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\21\ We are coordinating these proposed small business size
standards with the U.S. Small Business Administration.
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18. The Commission also proposes, in the event that it establishes
non-nationwide service areas, to provide small businesses with a
bidding credit of 15 percent and very small businesses with a bidding
credit of 25 percent, as set forth in the standardized schedule in part
1 of the Commission's rules. Accordingly, we frame the issue of the use
of these standards and associated bidding credits for applicants to be
licensed in the 2155-2175 MHz band, with particular focus on the
appropriate definitions of small and very small businesses as they may
relate to the size of the geographic area to be covered and the
spectrum allocated to each license. In discussing these issues,
commenters are requested to address the expected capital requirements
for services in these bands and other characteristics of the service.
Commenters are also invited to use comparisons with other services for
which the Commission has already established auction procedures as a
basis for their comments regarding the appropriate small business size
standards.
19. The FCC seeks comment on all the rules contemplated above and
on optional ways of implementing such contemplated rules, and on any
other possible rules which commenters wish to suggest and discuss
relative to the Regulatory Flexibility Act.
B. Legal Basis
20. The proposed action is authorized pursuant to Sec. Sec. 1, 2,
4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332
and 333 of the Communications Act of 1934, 47 U.S.C. Sec. Sec. 151,
152, 154(i), 157, 160, 201, 214, 301, 302, 307, 308, 309, 310, 319,
324, 332, 333.
C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
21. 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. \22\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
government jurisdiction.'' \23\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act. \24\ A small business is one which: (1)
Is independently owned and operated; (2) is not dominant in its field
of operation; and (3) satisfies any additional criteria established by
the SBA. \25\
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\22\ 5 U.S.C. 603(b)(3).
\23\ 5 U.S.C. 601(6).
\24\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632) Pursuant to the RFA,
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,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\25\ Small Business Act, 15 U.S.C. 632 (1996).
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22. The Commission has not yet determined how many licenses will be
awarded in the 2155-2175 MHz bands. Moreover, the Commission does not
yet know how many applicants or licensees in these bands will be small
entities. Thus, the Commission assumes, for purposes of this IRFA, that
all prospective licensees are small entities as that term is defined by
the SBA or by our proposed small business definitions for these bands.
Though the Commission does not know for certain which entities are
likely to apply for these frequencies, we note that the 2155-2175 MHz
bands are comparable to cellular service and personal communications
service. \26\
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\26\ See IRFA at para. 19, supra.
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Accordingly, we believe the following regulated entities will be
directly affected by our contemplated rules.
23. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad
economics census categories of ``Paging'' \27\ and ``Cellular and Other
Wireless Telecommunications.'' \28\ Under both categories, the SBA
deems a wireless business to be small if it has 1,500 or fewer
employees.
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\27\ 13 CFR 121.201, NAICS code 517211.
\28\ 13 CFR 121.201, NAICS code 517212.
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Paging. For the census category of Paging, Census Bureau data for
2002 show that there were 807 firms in this category that operated for
the entire year.\29\ Of this total, 804 firms had employment of 999 or
fewer employees, and three firms had employment of 1,000 employees or
more.\30\ Thus, under this category and associated small business size
standard, the majority of firms can be considered small.
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\29\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
\30\ 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 for firms with ``1000
employees or more.''
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Cellular and Other Wireless Telecommunications. For the census
category of Cellular and Other Wireless Telecommunications, Census
Bureau data for 2002 show that there were 1,397 firms in this category
that operated for the entire year.\31\ Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.\32\ Thus, under this second category and size
standard, the majority of firms can, again, be considered small.
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\31\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\32\ 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 for firms with ``1000
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
24. New recordkeeping or reporting requirements are contemplated in
the NPRM. However, until the FCC resolves how to assign license(s) for
the band, e.g., unlicensed vs. licensed approach, these requirements
are difficult to describe with great specificity because the Commission
does not know precisely what types of services may be developed in the
2155-2175 MHz band.
25. Nonetheless, the following recordkeeping or reporting
requirements seem applicable under a licensed approach. Entities
interested in acquiring an initial license to use the spectrum in the
2155-2175 MHz band will be required to file license applications using
the Commission's automated Universal Licensing System (ULS). ULS is an
online electronic filing system that also serves as a powerful
information tool that enables potential licensees to research
applications, licenses, and antenna structures. It also keeps the
public informed with weekly public notices, FCC rulemakings, processing
utilities, and a telecommunications glossary. ULS also features a
Geographic Information System (GIS), a digital mapping technology that
identifies spectrum use in relation to geographic areas. As in other
services, licensees in these bands

[[Page 64018]]

would be allowed to provide all allowable services anywhere within
their licensed area. The Commission's current mobile service license
application requires an applicant for mobile services to identify the
regulatory status of the service(s) they intend to provide, since
service offerings may bear on eligibility and other statutory and
regulatory requirements.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
26. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its adopted 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.\33\
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\33\ See U.S.C. 603(c)(1)-(4).
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27. Specifically to assist small businesses, the NPRM proposes to
establish small business size standards and associated small business
bidding credits for the 2155-2175 MHz band in the event that licenses
are assigned by competitive bidding and licensing is based on non-
nationwide geographic areas.\34\ The NPRM proposes a bidding credit of
15 percent for small businesses and a bidding credit of 25 percent for
very small businesses. The NPRM seeks comment on whether small business
bidding credits would be appropriate if a nationwide licensing scheme
is adopted for the 2155-2175 MHz band. The NPRM notes that the
implementation costs associated with a nationwide license in these
bands is presumed to be very high, and it is not clear whether small
businesses could attract the capital necessary to implement and provide
nationwide service. Accordingly, we ask commenters to address the
expected capital requirements for services in these bands and other
characteristics of the service. The Commission invites commenters to
use comparisons with other services for which the Commission has
already established auction procedures as a basis for their comments
regarding the appropriate small business size standards and associated
small business bidding credits. The Commission requests comment on any
other alternatives to minimize significant economic impact on small
entities.
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\34\ See IRFA para. 19, supra.
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28. The NPRM solicits comment on various alternatives regarding the
service rules for the 2155-2175 MHz band.\35\ The NPRM seeks to adopt
rules that will reduce regulatory burdens, promote innovative services
and encourage flexible use of this spectrum. The NPRM also seeks to
open up economic opportunities to a variety of spectrum users, which
could include small businesses. The NPRM considers various proposals
and alternatives partly because the Commission seeks to minimize, to
the extent possible, the economic impact on small businesses.\36\ The
Commission requests comment on any other alternatives to minimize
significant economic impact on small entities.
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\35\ See, e.g., NPRM, para. 1, supra.
\36\ See, e.g., NPRM, para. 1 (competitive bidding provisions
for designated entities), supra.
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29. The NPRM invites comment on various alternative licensing and
service rules and on a number of issues relating to how the Commission
should craft service rules for the AWS-3 spectrum that could have an
impact on small entities. For example, the Commission seeks comment on
the size of spectrum blocks for these frequencies and how the size of
spectrum blocks would impact small entities. The NPRM proposes a
geographic area approach to service areas, as opposed to a station-
defined licensing approach, and seeks comment on the appropriate size
of service areas. Specifically, the NPRM asks for comment on whether
smaller geographic areas would better serve the needs of small
entities. The NPRM explains that the Commission's approach to
determining optimum geographic area license size(s) attempts to
accommodate the likely range of applicant desires by balancing
efficiency with the policy goal of disseminating licenses among a wide
variety of applicants. The NPRM notes that the Commission wishes to
foster service to rural areas and tribal lands, and to promote
investment in and rapid deployment of new technologies and services.
The NPRM also notes that small license areas may favor smaller entities
and regional business plans and no interest in providing large-area
service. In summary, the NPRM seeks comment on the advantages and
disadvantages to small entities of a large geographic licensing scheme
over a small one in terms of impact on rural and small entities. The
Commission requests comment on any other alternatives to minimize
significant economic impact on small entities.
30. As noted earlier, the NPRM seeks comment on permitting
geographic partitioning and spectrum disaggregation. The NPRM notes
that geographic partitioning and spectrum disaggregation is a tool
utilized by the Commission to promote efficient spectrum use and
economic opportunity for a wide variety of applicants, including small
business, rural telephone, minority-owned, and women-owned applicants.
The NPRM seeks comment on the benefits and costs of partitioning and
disaggregation, and whether it promotes the public interest. Finally,
the NPRM, seeks comment on whether any band-specific limits on spectrum
aggregation are necessary or appropriate in this case, and how this
would impact the marketplace, including small entities. The Commission
requests comments on any other alternatives to minimize significant
economic impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
31. None.

Ordering Clauses

32. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302,
303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Commissions Act
of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303,
307, 308, 309, 310, 319, 324, 332, 333, that this Notice of Proposed
Rulemaking is hereby adopted.
33. Notice is given of the proposed regulatory changes described in
this Notice of Proposed Rulemaking, and that comment is sought on these
proposals.
34. 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.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 07-5632 Filed 11-13-07; 8:45 am]

BILLING CODE 6712-01-M