[Federal Register: October 5, 2007 (Volume 72, Number 193)]
[Rules and Regulations]
[Page 56923-56926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05oc07-15]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[WT Docket No. 02-55; FCC 07-167]
Improving Public Safety Communications in the 800 MHz Band;
Petitions for Waiver of Bethlehem, Pennsylvania and Reading, PA;
Petitions for Waiver of Rockdale County, Newton County, City of
Covington, Walton County, and Spalding County, GA
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
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SUMMARY: In the Third Memorandum Opinion and Order, the Federal
Communications Commission finds that Sprint Corporation (Sprint) has
not met the December 26, 2006, eighteen-month benchmark for clearing
Channel 1-120 incumbents as required by the 800 MHz rebanding process.
In that connection, the Commission denies the portion of Sprint's
Petition for Reconsideration that sought ``clarification'' of the
eighteen-month benchmark. The Commission also establishes additional
benchmarks to ensure timely clearing of the Channel 1-120 band by all
incumbent licensees, including Sprint itself. The Commission also
requires Sprint to provide monthly reports on its channel-clearing
efforts. In addition, the Commission clarifies the 30-month rebanding
benchmark, which requires all 800 MHz licensees that must reband to
have ``commenced'' reconfiguration of their systems by December 26,
2007. Finally, the Commission grants several petitions by NPSPAC
licensees to extend their rebanding deadline until after incumbent
analog broadcasters operating in their area on TV Channel 69 have
vacated the spectrum as part of the DTV transition.
DATES: Effective September 12, 2007.
FOR FURTHER INFORMATION CONTACT: Roberto Mussenden, Policy Division,
Public Safety and Homeland Security Bureau, at (202) 418-1428 or
Roberto.Mussenden@fcc.gov; John Evanoff, Policy Division, Public Safety
and Homeland Security Bureau, at (202) 418-0848 or John
Evanoff@fcc.gov.
SUPPLEMENTARY INFORMATION: This summary of the Commission's Third
Memorandum Opinion and Order in WT Docket No. 02-55, adopted on
September 11, 2007, and released on September 12, 2007. The full text
of this document is available for public inspection on the Commission's
Internet site at http://www.fcc.gov. It is also available for
inspection and copying during regular business hours in the FCC
Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC
20554. The full text of this document also may be purchased from the
Commission's duplication contractor, Best Copy and Printing Inc.,
Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554;
telephone (202) 488-5300; fax (202) 488-5563; e-mail FCC@BCPIWEB.COM.
Background
1. In the 800 MHz Report and Order, 69 FR 67823 (November 22,
2004), the Commission ordered the rebanding of the 800 MHz band to
resolve interference between commercial and public safety systems in
the band. In that Order, the Commission required Sprint to complete
retuning of Channel 1-120 licensees (i.e., licensees operating in the
806-809/851-854 MHz band) in twenty NPSPAC regions within eighteen
months of the start of the 36-month rebanding period. In the 800 MHz
[[Page 56924]]
Supplemental Order, 70 FR 6758, February 8, 2005, the Commission
modified this benchmark to require Sprint to relocate all Channel 1-120
incumbents other than Sprint and SouthernLINC in ``the first twenty
NPSPAC Regions the Transition Administrator has scheduled for band
reconfiguration.'' The Commission also required Sprint to have
initiated retuning negotiations with all NPSPAC licensees in the same
twenty regions by the eighteen-month benchmark date.
Discussion
A. Eighteen Month Benchmark
1. Petition for Reconsideration
2. Petition for Reconsideration. The Commission denied the portion
of Sprint's Petition for Reconsideration that sought ``clarification''
of the eighteen-month benchmark. In a Petition for Reconsideration
filed in January 2006, Sprint requested that the Commission ``clarify''
the nature of the eighteen-month rebanding benchmark. Because the
Commission found that Sprint's request was more appropriately
characterized as a Petition for Reconsideration, the Commission
concluded that Sprint's request was time-barred. Even if the Commission
considered Sprint's request on the merits, the Commission continued to
believe that the eighteen-month benchmark as defined in the 800 MHz
Supplemental Order should be retained.
2. Sprint's Compliance With the Eighteen Month Benchmark
3. Eighteen Month Benchmark Compliance. The Commission found that
Sprint has not met the December 26, 2006, eighteen-month benchmark for
clearing Channel 1-120 incumbents as required by the 800 MHz rebanding
process. On January 26, 2007, Sprint filed a report with the Public
Safety and Homeland Security Bureau on the status of 800 MHz band
reconfiguration and the steps Sprint had taken to meet the eighteen-
month benchmark. In its report, Sprint stated that as of the December
26, 2006, benchmark date, it had completed clearing and relocation of
all Channel 1-120 incumbents, other than Sprint and SouthernLINC, in 26
of 55 NPSPAC regions, including seven Wave 1 regions, sixteen Wave 2
regions, two Wave 3 regions, and one Wave 4 region. On March 6, 2007,
the Bureau requested that the TA certify that Sprint had completed the
rebanding activities described in the Sprint Report. On March 20, 2007,
the TA filed its certification of Sprint's performance. The Commission
concluded that Sprint has not met the first element of the eighteen-
month benchmark because as of the benchmark date, Sprint had not fully
cleared Channel 1-120 incumbents in all fifteen Wave 1 regions. With
regard to the second element of the eighteen-month benchmark, the
Commission concluded that Sprint has met this element of the eighteen-
month benchmark.
4. In the 800 MHz Report and Order, the Commission stated that if
Sprint failed to meet the eighteen-month benchmark ``for reasons that
[Sprint], with the exercise of due diligence could reasonably have
avoided, the Commission may consider and exercise any appropriate
enforcement action within its authority, including assessment of
monetary forfeitures or, if warranted, license revocation.'' While the
Commission deferred consideration of monetary forfeitures and license
revocation at this time, the Commission concluded that it is in the
public interest to adopt additional benchmarks to ensure that Sprint
supports continued progress in rebanding and a smooth transition for
critical public safety communications systems. Establishing such
benchmarks will also provide important guidance to all stakeholders and
will enhance the Commission's ability to monitor and enforce progress
as rebanding moves into its later stages.
B. Additional Benchmarks
5. The Commission established additional benchmarks to ensure
timely clearing of the Channel 1-120 band by all incumbent licensees,
including Sprint itself. First, with limited exceptions noted below, we
require Sprint to complete relocation of all non-Sprint, non-
SouthernLINC Channel 1-120 incumbents in all regions in Waves 1 through
3, and in the non-border regions of Wave 4, by December 26, 2007. The
Commission excluded from this benchmark those Stage 1 licensees that
also have NPSPAC facilities and that have elected to relocate both
their Channel 1-120 and NPSPAC facilities in Stage 2. The Commission
will also not require Sprint to complete Stage 1 clearing in Puerto
Rico by the benchmark date, because the Puerto Rico band plan is
currently being revised. Finally, as discussed below, beginning on
October 1, 2007, the Commission will require Sprint to provide a
monthly update on its progress toward completing Channel 1-120
clearing.
6. Second, the Commission also imposed benchmarks with respect to
the clearing of Channel 1-120 spectrum used by Sprint and SouthernLINC.
These benchmarks are essential to clear the Channel 1-120 spectrum for
timely relocation by NPSPAC, and to eliminate any incentive for Sprint
to delay rebanding in order to continue using 800 MHz spectrum
designated for public safety as part of its own network. First, FRAs
between Sprint and relocating NPSPAC licensees must provide for timely
clearing of the necessary spectrum by Sprint to facilitate NPSPAC
relocation. The 800 MHz Report and Order requires Sprint to cease using
Channel 1-120 channels to accommodate NPSPAC relocation. To ensure that
this clearing process occurs in a timely manner, in any case in which a
NPSPAC licensee requests access to spectrum in the new NPSPAC band
because it requires the spectrum for testing purposes or to commence
operations, Sprint must clear the necessary channels within 90 days of
the request. For any request made on or after January 1, 2008, Sprint
must clear the necessary spectrum within 60 days of the request.
7. The Commission recognized that imposing this requirement will
require Sprint to implement channel swaps and other adjustments to its
own network, which could have an impact both on Sprint's network
capacity and on other NPSPAC licensees in the area. The Commission
emphasized that the spectrum requirements of NPSPAC licensees take
precedence over Sprint network capacity issues, and that Sprint is
responsible for ensuring that other NPSPAC licensees do not experience
harmful interference as a result of Sprint's own network modifications.
The Commission noted that Sprint has had ample opportunity to plan for
these contingencies and that the Commission has also established
mechanisms that enable Sprint to prepare for and mitigate spectrum
shortfalls it may experience in accommodating rebanding by other
licensees, e.g., by providing access to 900 MHz spectrum and crediting
Sprint for the cost of constructing additional cell sites to increase
capacity.
8. The Commission also affirmed that the Commission's orders
require Sprint to vacate the entire Channel 1-120 band, other than in
Wave 4 border areas, by the end of the 36-month transition period on
June 26, 2008. The 800 MHz Report and Order stated that ``we require
Nextel to vacate all of its spectrum holdings below 817 MHz/862 MHz''
as part of the transition process. This also requires Sprint to clear
all of SouthernLINC's Channel 1-120 holdings by June 26, 2008, and
provide for SouthernLINC's relocation to comparable spectrum. The
Commission emphasized that Sprint must clear its Channel 1-120 holdings
by the June 2008 deadline regardless of whether all
[[Page 56925]]
NPSPAC licensees in a given region are prepared to relocate within that
time frame. In that connection, the Commission disagreed with Sprint's
contention that requiring it to vacate spectrum by June 2008 ``would
seriously harm public safety'' and ``squander scarce spectrum
resources.''
9. Nevertheless, in the event that the Commission were to grant any
NPSPAC licensee a waiver allowing it to relocate to the new NPSPAC band
after June 26, 2008, the Commission stated that it will allow Sprint to
petition to remain temporarily on the Channel 1-120 channels that it
would otherwise have to vacate to accommodate the NPSPAC system. In any
such petition, Sprint must demonstrate that public safety will not be
adversely affected by the extension, that it has no reasonable
alternative, and that the extension is otherwise in the public
interest. Any extension granted to Sprint under this procedure will
require Sprint to relinquish the channels on 60 days notice by the
NPSPAC licensee as described in paragraph 23 above. The Commission also
emphasized that Sprint may not under any circumstances remain on any
Channel 1-120 channel once the corresponding channel in the 821-824/
866-869 MHz band becomes available to it. For example, if a channel in
the 821-824/866-869 MHz band is currently unoccupied by a NPSPAC
licensee, and the channel becomes available to Sprint after June 26,
2008, Sprint may not continue to use the corresponding Channel 1-120
channel, even though the channel is not needed to accommodate a
relocating NPSPAC licensee.
10. The Commission also affirmed that Sprint must vacate all of its
remaining spectrum in the interleaved portion of the 800 MHz band, as
well as the Expansion Band and Guard Band, by June 26, 2008, except in
Wave 4 border areas, regardless of any other rebanding contingency.
Sprint has already vacated some spectrum in these portions of the band
to accommodate relocation of Stage 1 licensees from Channels 1-120.
Prior to June 26, 2008, Sprint may continue to use its spectrum in the
interleaved, Guard, and Expansion Bands to the extent it is not needed
for relocation of other licensees. However, Sprint must clear this
remaining spectrum by the end of the transition on June 26, 2008
because the channels that Sprint vacates will revert to the Commission
for re-licensing, and public safety will have exclusive access to the
vacated interleaved channels for a three-year period after rebanding is
completed in each region.
11. To assist in monitoring and enforcing each of the band-clearing
conditions imposed on Sprint, as set forth above, the Commission
required that beginning on October 1, 2007, Sprint file monthly reports
with the TA and PSHSB on its clearing of the Channel 1-120 spectrum.
These reports are intended to provide specific, verifiable information
to allow us to monitor Sprint's progress and determine whether it is in
compliance with each of the benchmarks and conditions of this order, as
well as with other applicable provisions of the 800 MHz rebanding
rules. Specifically, Sprint must include the following information in
each monthly report with respect to clearing of Channels 1-120. This
information must be provided separately for each NPSPAC region:
(1) The number of non-Sprint, non-SouthernLINC licensees that have
been cleared from Channels 1-120, and the number that remain to be
cleared;
(2) For each region in which SouthernLINC operates, the number of
SouthernLINC channels in the Channel 1-120 band that have been cleared,
and the number that remain to be cleared;
(3) The number of Channel 1-120 channels that are being used by
Sprint in its own network, and the number of Channel 1-120 channels
that Sprint has vacated; and
(4) The identity of each NPSPAC licensee that has requested that
Sprint vacate Channel 1-120 channels, the date of the licensee's
request, the number of channels that Sprint has been asked to vacate,
and the date proposed by the licensee for Sprint to vacate the
specified channels.
12. These monthly reports by Sprint will assist the Commission in
monitoring Sprint's compliance with its Stage 1 implementation
obligations, but will also provide important information relevant to
the progress of Stage 2 rebanding of NPSPAC licensees. This reporting
requirement is imposed as a separate condition on Sprint's licenses as
modified in the Commission's orders in this proceeding. To the extent
that Sprint fails to satisfy this reporting requirement, the Commission
may consider any appropriate enforcement action within its authority,
including but not limited to revocation of Sprint's modified licenses.
Sprint also remains subject to all prior requirements and license
conditions adopted in this proceeding.
C. 30-Month Benchmark
13. The Commission clarified the 30-month rebanding benchmark,
which requires all 800 MHz licensees that must reband to have
``commenced'' reconfiguration of their systems by December 26, 2007.
The 800 MHz Report and Order established a 30-month benchmark for the
800 MHz rebanding process. Specifically, the Commission required that
all 800 MHz systems ``must have commenced reconfiguration within 30
months of the Commission Public Notice announcing the start date of
reconfiguration in first NPSPAC region.'' Under the rebanding schedule,
this 30-month date falls on December 26, 2007. To ensure that all
parties take the necessary steps to meet this benchmark, the Commission
provided the following guidance.
14. First, in a companion Public Notice released on September 12,
2007, the Commission adopted new timelines for non-border area NPSPAC
licensees to complete planning and FRA negotiations and to begin
rebanding implementation. Licensees who are in compliance with these
timelines as of December 26, 2007 will be deemed to be in compliance
with the 30-month benchmark. The Commission will apply the benchmark to
all Wave 1-3 licensees and to all Wave 4 licensees that have received
frequency assignments from the TA as of September 12, 2007, the release
date of this order. However, the Commission will not apply this
benchmark to Wave 4 licensees that have not received frequency
assignments because their systems are in border regions affected by
ongoing negotiations with Canada and Mexico. The Commission, however,
will establish an appropriate implementation benchmark for Wave 4
licensees at a later date. Finally, the Commission directed the TA to
submit a report to the Public Safety and Homeland Security Bureau by
January 15, 2008 regarding whether the 30-month benchmark as defined
above has been met. The TA report should certify whether all covered
licensees have complied with the timelines set forth in the Public
Notice, and identify all cases in which the timelines have not been
met.
D. Rebanding in Markets With Channel 69 Incumbents
15. The Commission granted several petitions by NPSPAC licensees to
extend their rebanding deadline until after incumbent analog
broadcasters operating in their area on TV Channel 69 have vacated the
spectrum as part of the DTV transition. Two NPSPAC licensees in eastern
Pennsylvania and four NPSPAC licensees in the Atlanta, Georgia area
have filed requests for extension of the June 26, 2008 rebanding
deadline based on their proximity to incumbent full power analog TV
broadcasters WFMZ-TV and
[[Page 56926]]
WUPA, operating on Channel 69 (800-806 MHz) in Allentown, Pennsylvania
and Atlanta, respectively. These NPSPAC licensees (collectively,
Petitioners) expressed concern that if they retune to the new NPSPAC
band (806-809 MHz) before the February 17, 2009 DTV transition date,
they will receive out-of-band emission (OOBE) interference on their new
NPSPAC channels from the Allentown and Atlanta Channel 69 incumbents.
The Commission granted Petitioners' requests in part and will allow
them to delay the commencement of their infrastructure retune until
March 1, 2009. However, the Commission directed Petitioners to proceed
with (and Sprint to pay for) planning and other preparatory rebanding
activity (e.g., replacement and reprogramming of mobiles) that can
occur prior to the DTV transition date.
16. Finally, the Commission delegated authority to the Public
Safety and Homeland Security Bureau to consider future requests by 800
MHz licensees to extend the 36-month deadline as it applies to the
rebanding of their particular systems. The Commission directed the
Bureau to subject such extension requests to a high level of scrutiny.
Licensees submitting requests to the Bureau will be expected to
demonstrate that they have worked diligently and in good faith to
complete rebanding expeditiously, and that the amount of additional
time requested is no more than is reasonably necessary to complete the
rebanding process.
Ordering Clauses
17. Accordingly, it is ordered that, pursuant to sections 4(i),
303(f), 309, 316, 332, 337 and 405 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 303(f), 309, 316, 332, 337 and 405, this
Third Memorandum Opinion and Order is hereby adopted.
18. It is further ordered that the Petition for Reconsideration
filed by Sprint Nextel Corporation, on January 27, 2006 is dismissed to
the extent described herein.
19. It is further ordered that, as a condition of its 800 MHz and
1.9 GHz modified licenses, Sprint Corporation shall comply with the
benchmarks and reporting requirements set forth herein.
20. It is further ordered that the 800 MHz Transition
Administrator, on January 15, 2008, shall submit a report on the
progress of band reconfiguration to the extent described herein.
21. It is further ordered pursuant to the authority of section 4(i)
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and
sections 1.925 of the Commission's Rules, 47 CFR 1.925 that the
Requests for Waiver submitted by the Cities of Bethlehem and Reading,
Pennsylvania, and Covington, Georgia, and the Counties of Rockdale,
Newton, Walton, and Spalding, Georgia, in the above-captioned
proceeding are granted to the extent described herein.
22. This document does not contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. In addition, 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).
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E7-19641 Filed 10-4-07; 8:45 am]
BILLING CODE 6712-01-P