[Federal Register: August 1, 2007 (Volume 72, Number 147)]
[Rules and Regulations]
[Page 41935-41937]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au07-15]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 00-230; FCC 07-52]
Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
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SUMMARY: In this document, the Federal Communications Commission
(``Commission'') determines that, at this time, no further revisions
are necessary with regard to the existing policies and rules relating
to secondary markets in radio spectrum usage rights.
DATES: Effective August 1, 2007.
FOR FURTHER INFORMATION CONTACT: Paul Murray, Wireless
Telecommunications Bureau, at (202) 418-7240, or via the Internet at
Paul.Murray@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order (hereinafter Third Report and Order) in WT Docket No.
00-230, adopted on April 6, 2007, and released on April 11, 2007. This
order addresses comments filed in response to the Commission's Second
Further Notice of Proposed Rulemaking (Second Further Notice) 69 FR
77560, December 27, 2004, in this docket. The full text of this
document is available for inspection and copying during normal business
hours in the FCC Reference Information Center, Portals II, 445 12th
Street, SW., Room CY-A257, Washington, DC 20554. The complete text may
be purchased from the FCC's copy contractor, Best Copy & Printing,
Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (800) 378-3160 or 863-2893, facsimile (202) 863-2898, or via
e-mail at http://www.bcpiweb.com The full text is also available on the Commission's Web site at http://www.fcc.gov.
Paperwork Reduction Act
This Third Report and Order does not contain any new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain
any new or modified ``information collection burden for small business
concerns with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
[[Page 41936]]
Synopsis of the Third Report and Order
I. Introduction
1. In the Third Report and Order, the Commission affirms the
Commission's policies and rules regarding ``private commons''
arrangements. We decline to adopt additional technical requirements
regarding devices that might be used within a private commons, finding
that such requirements are both premature and unnecessary. In addition,
we determine that the proposal for licensing underutilized spectrum to
equipment manufacturers for development of private commons is beyond
the scope of this proceeding.
II. Background
2. In the Second Report and Order portion of the Second Report and
Order, Order on Reconsideration, and Second Further Notice of Proposed
Rulemaking in WT Docket No. 00-230, (Second Report and Order, Order on
Recon, and Second Further Notice, respectively), the Commission took
additional steps to facilitate the development of robust secondary
markets in spectrum usage rights involving Wireless Radio Services. In
particular, in the Second Report and Order, 69 FR 77521, December 27,
2004, the Commission established additional policies intended to
facilitate the use of advanced technologies, including ``smart'' or
``opportunistic'' devices, which have the potential to increase access
and use of unused licensed spectrum. First, the Commission clarified
that its spectrum leasing rules permit ``dynamic'' spectrum leasing
arrangements, whereby licensees and spectrum lessees may enter into
more than one spectrum leasing arrangement involving the shared use of
the same spectrum. Second, the Commission expanded the spectrum
licensing framework to include a new ``private commons'' option. The
``private commons'' was intended as a means of allowing a licensee or
spectrum lessee to make spectrum available to individual users or
groups of users that do not fit squarely within the existing spectrum
leasing framework or within the traditional end-user arrangements
associated with the licensee's or lessee's network infrastructure. The
Commission stated that it sought to provide for opportunistic uses of
spectrum pursuant to the terms and conditions that licensees (and
spectrum lessees) agree upon so long as these terms and conditions fall
within the licensee's spectrum usage rights and are not inconsistent
with applicable technical and other regulations imposed by the
Commission to prevent harmful interference to other licensees.
3. By establishing a private commons a licensee (or spectrum
lessee) may permit peer-to-peer communications by other users employing
devices in a non-hierarchical network arrangement that does not utilize
the licensee's (or spectrum lessee's) network infrastructure. The
licensee (or lessee) authorizes other users to operate on the licensed
frequencies employing particular devices that meet technical parameters
specified by the licensee (or lessee). The technical parameters for
these devices, in turn, enable users to operate in a manner designed to
minimize interference concerns relating to other users in the licensed
band. The Commission stated that the licensee (or lessee) must retain
both de facto control of the use of the spectrum within the private
commons and ``direct responsibility'' for the users' compliance with
the Commission's rules. Further, as manager of the private commons, the
licensee (or lessee) is required to notify the Commission about the
private commons, and particular features associated with it, prior to
permitting users to operate. Requirements pertaining to private commons
arrangements are set forth in Sec. 1.9080 of the Commission's rules.
4. In the Second Further Notice, the Commission sought comment on
additional policies that could facilitate the development of advanced
technologies, including whether additional revisions should be made to
the private commons regulatory model. The Commission also sought
comment on whether the private commons option established in the Second
Report and Order sufficiently accommodates the wide variety of ways in
which licensees (and spectrum lessees) and other users may wish to
enter cooperative arrangements that employ ``smart'' or
``opportunistic'' devices. For example, the Commission asked whether it
should adopt an approach to private commons that would allow
intermediaries to facilitate transactions with users, design and set up
communications networks for users or provide value-added services or
applications. In addition, the Commission sought comment on the
appropriate notification process for licensees or de facto transfer
lessees that choose to offer a private commons to comply with the
requirement that a licensee or spectrum lessee managing the private
commons must notify the Commission prior to permitting users to begin
operating within the private commons.
5. In response to the Second Further Notice, the Commission
received comments from Cingular Wireless LLC (Cingular Wireless),
CTIA--The Wireless Association (CTIA), and Gateway Communications, Inc.
(Gateway). Cingular Wireless and CTIA sought clarification of certain
aspects of the requirements pertaining to the licensee's or spectrum
lessee's responsibility, as manager of the private commons, to ensure
that users and devices used in a private commons arrangement comply
with applicable Commission rules. Gateway proposed a new scheme for
managing a private commons in cases of ``market failure.''
6. Cingular Wireless specifically asked for additional
clarification regarding the circumstances under which the Commission
would hold, and would not hold, the licensee (or lessee) ``directly
responsible'' for users' interference in geographic areas outside of
the private commons, in which they were not authorized to operate. For
example, in the case of mobile opportunistic devices, Cingular Wireless
argued that the Commission should evaluate a licensee's (or lessee's)
compliance with its responsibilities based on the terms and conditions
it establishes for operation within the private commons, and that non-
compliance with these provisions should not result in liability to the
licensee (or lessee). In addition, while agreeing that it may be
``beneficial or even necessary'' to require that smart devices used in
the private commons include technologies enabling the private commons
managers to shut down the devices if they were causing harmful
interference, Cingular Wireless argued that imposing such a requirement
at this time would be premature.
7. CTIA urged the Commission to adopt more detailed technical
standards concerning private commons arrangements. Specifically, to
ensure that a private commons device cannot be used outside of the
licensed spectrum and geographic area of the licensee (or lessee)
authorizing the use of its spectrum, CTIA recommended adoption of
strict rules and suggested that any private commons device should
contain an element of positive control, in the form of technical
intelligence, that prevents it from operating in unauthorized spectrum
or areas.
8. In response to the Second Further Notice, Gateway proposed that
the Commission go beyond its secondary markets mechanisms and allow
equipment manufacturers to file applications for authority to manage
private commons using licensed
[[Page 41937]]
spectrum in geographic areas where there has been a ``market failure''
and spectrum is ``unwanted'' or ``underutilized.'' Gateway suggested
that the Commission could issue licenses to equipment manufacturers in
exchange for a reasonable one-time payment to the United States
treasury, or for a modest spectrum use fee payable on an annual basis
to the Commission, or even at no charge, but did not suggest how the
Commission would decide among competing parties who might seek to
obtain any such license. Gateway asserted that this new licensing
mechanism of offering spectrum to equipment manufacturers would create
new opportunities for small businesses and others to obtain access to
spectrum for a variety of niche uses and services.
9. In reply comments, CTIA asserted that the Commission should
reject Gateway's proposal as outside of the scope of the Commission's
Second Further Notice, which sought comment only on the use of
opportunistic devices in licensed spectrum, not comment on new ways to
give an interested party an initial spectrum license for a private
commons. Accordingly, the Commission cannot consider Gateway's proposal
in this proceeding because doing so would violate the requirement for
adequate notice under the Administrative Procedures Act (APA). CTIA
further asserted that the proposal would create a new licensing scheme
in violation of the requirements under section 309(j) of the
Communications Act, as amended, which requires that the spectrum be
subject to competitive bidding.
III. Third Report and Order
10. We determine that the requirements set forth in the Second
Report and Order and codified in our rules, 47 CFR 1.9080, provide the
right balance in encouraging the development of devices for operation
within a private commons arrangement while at the same time placing the
appropriate degree of responsibility on licensees (or spectrum lessees)
to ensure that the users and devices do not cause harmful interference
in areas outside of the private commons and the license authorization.
Accordingly, we affirm the general policies and rules the Commission
adopted for private commons, including the requirement that licensees
(or spectrum lessees) retain both de facto control over use of the
spectrum and direct responsibility for ensuring that users and the
devices used within the private commons comply with the Commission
technical and services rules under the license authorization, including
those relating to interference. Because the licensees (or lessees)
themselves, in their capacity as managers of private commons, exercise
control under the license authorization and are responsible for
establishing the technical parameters of the devices that would be used
within the private commons, they must exercise their responsibilities
so as to ensure compliance with the rules, including bearing direct
responsibility for establishing parameters of use that prevent harmful
interference beyond the private commons areas and the boundaries of
their licenses.
11. Based on the scant record before us and the wide variety of
ways in which a private commons could be implemented, we decline to
modify our rules at this time to further detail the responsibilities
placed on the managers of private commons. We are in no position, based
on what is before us, to make any determination by rule, as Cingular
Wireless requests, as to whether a particular mechanism may or may not
be sufficient for a licensee (or spectrum lessee) to exercise its
responsibilities in a given instance. Nor do we conclude that
establishing strict technical rules or requirements, as requested by
CTIA, is appropriate. We do not want to limit at this time the various
means by which a licensee (or lessee) might fulfill its obligations as
manager of a private commons. While a ``shut down'' mechanism may be
effective, it is not the only conceivable means to ensure that a
licensee (or lessee) exercises de facto control over the use of the
spectrum and complies with the Commission's rules under the license
authorization. We see no need at this time to limit other possible
means that might be consistent with the Commission's private commons
framework.
12. Finally, because Gateway's proposal is outside the scope of the
Second Further Notice, and not a logical outgrowth of it, we will not
address it in this proceeding. The Second Further Notice sought comment
on ways to increase spectrum access through opportunistic uses of
spectrum specifically within the context of the Commission's spectrum
leasing policies and rules set forth in the proceeding addressing the
development of secondary markets. The Second Further Notice did not
contemplate revising the Commission's initial licensing rules. We note
that the opportunities that Gateway sees for new uses of spectrum also
exist within the private commons framework that the Commission has
established in the Second Report and Order.
IV. Ordering Clauses
13. Pursuant to sections 1, 4(i), 301, 303(r), and 503 of the
Communications Act, as amended, 47 U.S.C. 151, 154(i), 301, 303(r), and
503, it is ordered that this Third Report and Order is adopted. The
Commission's Consumer Information Bureau, Reference Information Center,
shall send a copy of the Third Report and Order, including the
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7-14768 Filed 7-31-07; 8:45 am]
BILLING CODE 6712-01-P