[Federal Register: May 8, 2008 (Volume 73, Number 90)]
[Rules and Regulations]
[Page 26032-26042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my08-24]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 27
[WT Docket Nos. 03-66; 03-67; 02-68; IB Docket No. 02-364; ET Docket
No. 00-258; FCC 08-83]
Facilitating the Provision of Fixed and Mobile Broadband Access,
Educational and Other Advanced Services in the 2150-2162 and 2500-2690
MHz Bands; Reviewing of the Spectrum Sharing Plan Among Non-
Geostationary Satellite Orbit Mobile Satellite Service Systems in the
1.6/2.4 GHz Bands
AGENCY: Federal Communications Commission.
ACTION: Final rule; declaratory ruling.
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SUMMARY: In this document, the Commission continues its efforts to
transform its rules and policies governing the licensing of the
Educational Broadband Service (EBS) and the Broadband Radio Service
(BRS) in the 2495-2690 MHz (2.5 GHz) band, with respect to petitions
for reconsideration filed in response to the Order on Reconsideration
and Fifth Memorandum Opinion and Order and Third Memorandum Opinion and
Order and Second Report and Order (Big LEO Order on Reconsideration and
AWS 5th MO&O and BRS/EBS 3rd MO&O and 2nd R&O). Also, the Commission's
actions in this proceeding further refine its rules to enable licensees
to deploy new and innovative wireless services in the 2.5 GHz band. We
believe that these actions will facilitate the promotion of broadband
service to all Americans.
DATES: Effective June 9, 2008, except for Sec. 27.1221(f), which
contains information collection requirements that have not been
approved by the Office of Management and Budget (OMB). The FCC will
publish a document in the Federal Register announcing the effective
date for that section.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. A copy of any comments on the Paperwork Reduction
Act information collection requirements 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
at Judith-B.Herman@fcc.gov.
FOR FURTHER INFORMATION CONTACT: For further information regarding the
Big LEO Third Order on Reconsideration and Sixth Memorandum Opinion and
Order, please contact Howard Griboff, Policy Division, International
Bureau, Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554, at 202-418-0657 or via the Internet at
Howard.Griboff@fcc.gov or Jamison Prime, Policy and Rules Division,
Office of Engineering and Technology, Federal Communications
Commission, 445 12th Street, SW., Washington, DC 20554, at 202-418-7474
or via the Internet at Jamison.Prime@fcc.gov. For further information
concerning the BRS/EBS Fourth Memorandum Opinion and Order and
Declaratory Ruling contact John Schauble, Deputy Chief, Broadband
Division, Wireless Telecommunications Bureau, Federal Communications
Commission, 445 12th Street, SW., Washington, DC 20554, at (202) 418-
0797 or via the Internet to John.Schauble@fcc.gov. For additional
information concerning Paperwork Reduction Act information collection
requirements contained in this document, contact Judith B. Herman at
(202) 418-0214, or via the Internet at PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Order on Reconsideration and Sixth Memorandum Opinion and Order and
Fourth Memorandum Opinion and Order (Big LEO 3rd Order on
Reconsideration and AWS 6th MO&O and BRS/EBS 4th MO&O) and Declaratory
Ruling, FCC 08-83, adopted on March 18, 2008 and released on March 20,
2008. The full text of this document, including attachments and related
documents, is available for public inspection and copying during normal
business hours in the FCC Reference Information Center, Room CY-A257,
445 12th Street, SW., Washington, DC 20554. The complete text of these
documents and related Commission documents may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.
(BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC
20554, (202) 488-5300 or (800) 387-3160, 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 08-83.
The complete text of these documents is also available on the
Commission's Web site at http://wireless.fcc.gov/edocs--public/
attachment/FCC-08-83A1doc. This full text may also be downloaded at:
http://wireless.fcc.gov/releases.html. Alternative formats (computer
diskette, large print, audio cassette, and Braille) are available by
contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via
e-mail to bmillin@fcc.gov.
Summary
I. Introduction and Executive Summary
1. In this Big LEO 3rd Order on Reconsideration and AWS 6th MO&O
and Order and BRS/EBS 4th MO&O, the Commission takes the following
actions with respect to petitions for reconsideration filed in response
to the Big LEO Order on Reconsideration and AWS 5th MO&O and BRS/EBS
3rd MO&O and 2nd R&O:
Grant a petition, in part, by adopting the part 1, subpart
Q competitive bidding rules for future BRS auctions, seeking further
comment on rules for future licenses for EBS spectrum, and directing
WTB to review inventory and schedule auction(s) of unassigned BRS
spectrum as soon as practicable.
Adopt the small business size standards and bidding
credits proposed in the BRS/EBS FNPRM (``small business''--an entity
with attributed average annual gross revenues not exceeding $40 million
for the preceding three years; ``very small business''--an entity with
attributed average annual gross revenues not exceeding $15 million for
the same period; and an ``entrepreneur''--an entity with attributed
annual average gross revenues not exceeding $3 million for the same
period).
Deny a petition requesting that the Commission permit
licensees to self-transition before January 21, 2009, the deadline for
proponents to file an Initiation Plan with the Commission.
Grant a petition asking the Commission to correct the
inconsistency between the BRS/EBS 3rd MO&O and the text of Sec.
27.1236(b)(6), and on the Commission's own motion, change references in
Sec. Sec. 27.1231(f), 27.1236(a), 27.1236(b)(1) and 27.1236(b)(6) to
dates certain.
Deny as moot a petition requesting that the Commission
clarify the requirements for multichannel video programming
distribution (MVPD) operators seeking to opt out of the transition.
[[Page 26033]]
Deny a petition seeking reconsideration on the effect of
MVPD opt-out on adjacent licensees with overlapping Geographic Service
Areas (GSAs).
Grant a petition asking the Commission to modify the
height benchmarking rule to establish deadlines for compliance.
Grant a petition asking the Commission to modify the out-
of-band emissions rule to establish deadlines for compliance.
Grant a petition asking the Commission to modify the out-
of-band emissions rule to provide that out-of-band emissions are to be
measured from the outermost edge of the channels when two or more
channels are combined.
Deny a petition and reaffirm that only first adjacent
channel licensees may file an interference complaint concerning
adjacent channel interference.
Deny a petition and affirm the Commission's decision
regarding out-of-band emissions for mobile digital stations.
Deny a petition asking to establish different deadlines
for user stations to cure interference where an existing base station
suffers interference from an outdoor antenna user station.
Grant a petition and allow licensees to maintain existing
operations post-transition in the mid-band segment (MBS) at 2572-2614
MHz, even if such operations exceed the current -73.0 dBW/m2
contour limit.
Deny a petition asking the Commission to adopt technical
standards should it become necessary to ``split the football'' to
determine each licensee's GSA.
Grant a petition and permit BRS Channels No. 1 and 2/2A
licensees to operate simultaneously in the 2150-2160/62 MHz and 2496-
2690 MHz bands until every subscriber is relocated to the 2496-2690 MHz
band.
Deny a petition asking the Commission to provide greater
protection to BRS Channel No. 1 operations by reducing the power flux
density (PFD) radiated from the Mobile Satellite Service (MSS) in the
2496-2500 MHz band.
Deny a petition and affirm the use of splitting the
football for BRS Channels No. 2 and 2A licensees.
Deny petitions concerning overlaps between grandfathered
EBS E and F Group licensees and co-channel BRS E and F Group licensees
and affirm the existing rule.
Deny a petition asking for procedural changes to the 90-
day negotiation period for significant GSA overlaps (more than 50
percent) between grandfathered EBS E and F Group channel licensees and
incumbent BRS E and F Group channel licensees.
Grant a petition and reinstate a Gulf of Mexico Service
Area.
Establish the Gulf of Mexico boundary 12 nautical miles
from the shore.
Apply the existing technical rules to the Gulf of Mexico
Service Area.
Grant a petition and affirm that EBS excess capacity
leases executed before January 10, 2005, are limited to 15 years.
Deny a petition relating to pre-1998 legacy, video-only
excess capacity leases but affirm that leases executed before January
10, 2005, are limited to 15 years.
Grant a petition and amend rules to permit lessees to
offer EBS licensees/lessors the actual equipment used or comparable
equipment on lease termination.
Deny a petition asking that licensees be permitted to
demonstrate substantial service based on past-discontinued service.
Grant a petition asking for a new safe harbor for heavily
encumbered or highly truncated Basic Trading Areas (BTAs) and GSAs.
Grant a petition seeking minor changes in the EBS
eligibility rule to conform it to other changes made by the Commission.
Grant a petition asking the Commission to adopt a rule
that clarifies that commercial EBS licensees are not subject to
educational programming requirements or the special EBS leasing
restrictions.
Deny a petition asking the Commission to reinstate pending
mutually exclusive applications for new EBS stations.
Grant in part requests for declaratory ruling and clarify
how the splitting the football process for determining GSAs works with
respect to licenses that were expired on January 10, 2005.
II. BRS/EBS Fourth Memorandum Opinion and Order
A. Licensing Unassigned Spectrum in the Band
2. In the BRS/EBS 4th MO&O, with respect to licensing unassigned
spectrum in the band, the Commission adopts rules providing that new
licenses for unassigned BRS spectrum will be assigned by BTA, with each
license authorizing access for all BRS spectrum not otherwise assigned
either at the time of licensing or in the future. Transitions in
adjacent BTAs will be protected by the requirements in our technical
rules that new BTA licensees operate pursuant to the post-transition
band plan and provide protection to adjacent operations. We will
require new licensees to operate pursuant to the new band plan. This
requirement will protect existing licensees by ensuring that any future
high-power video operations are restricted to the MBS.
B. BRS Competitive Bidding Rules
3. With respect to the assignment of new BRS licenses, we adopt the
competitive bidding rules set forth in part 1, subpart Q, of the
Commission's rules, consistent with the bidding procedures that have
been employed in many previous auctions. Specifically, we will adopt
the part 1 rules governing, among other things, competitive bidding
design, designated entities, application and payment procedures,
collusion issues, and unjust enrichment. We note that such rules would
be subject to any modifications by the Commission in our ongoing part 1
proceeding. In addition, consistent with current practice, matters such
as the appropriate competitive bidding design, minimum opening bids and
reserve prices, will be determined by the Wireless Telecommunications
Bureau pursuant to its delegated authority.
4. With respect to bidding credits, we adopt the proposal contained
in the BRS/EBS FNPRM to define three categories: ``small business''--an
entity with average annual gross revenues not exceeding $40 million for
the preceding three years; ``very small business''--an entity with
average gross revenues not exceeding $15 million for the same period;
and ``entrepreneur''--an entity with average gross revenues not
exceeding $3 million for the same period. We also adopt the proposal to
provide qualifying ``small businesses'' with a bidding credit of 15%,
qualifying ``very small businesses'' with a bidding credit of 25%; and
qualifying ``entrepreneurs'' with a bidding credit of 35%, consistent
with Sec. 1.2110(f)(2) of the Commission's rules.
C. Transition
5. We reaffirm our decision that a licensee may not self-transition
before January 21, 2009 and reiterate that a proponent-driven
transition is the most efficient method of transitioning a BTA. In
particular, we find that early self-transitions would complicate the
transition process for the proponent and would not provide sufficient
benefits to the self-transitioning licensee to offset those additional
complications.
6. We grant a petition asking the Commission to correct the
inconsistency
[[Page 26034]]
between the BRS/EBS 3rd MO&O and the text of Sec. 27.1236(b)(6), and
on the Commission's own motion, change references in Sec. Sec.
27.1231(f), 27.1236(a), 27.1236(b)(1) and 27.1236(b)(6) to dates
certain. Also, we amend Sec. Sec. 27.1231(f) and 27.1236(a),
27.1236(b)(1), and 27.1236(b)(6) to specify dates certain. Thus,
Sec. Sec. 27.1231(f) and 27.1236(a) reference January 21, 2009, the
date the Initiation Plan must be filed with the Commission; Sec.
27.1236(b)(1) references April 21, 2009, the date a self-transitioning
licensee must notify the Commission; and Sec. 27.1236(b)(6) references
October 20, 2010, the date self-transitions must be completed. Because
the time line for self-transitions parallels the timeline for
proponent-driven transitions, we note that proponent-driven transitions
must also be completed on or before October 20, 2010, unless stayed
pending alternative dispute resolution.
D. Multichannel Video Programming Distributors (MVPD) Opt-Out
7. We dismiss as moot a petition for reconsideration asking us to
adopt additional requirements for MVPD opt-out waiver requests because,
at this point, such changes are unnecessary. The last date for filing
requests to opt out of the transition plan was April 30, 2007, and that
date has passed. To the extent the petitioner contends that a specific
showing is defective, we will consider its arguments in the context of
any opposition or petitions filed against specific waiver requests.
8. We also conclude that foreclosing an opt-out in the case of
overlapping GSAs is unnecessary. Instead, the transitioning operator
and the non-transitioning operator may resolve this situation among
themselves or the transitioning licensee may file comments for
Commission consideration in response to the non-transitioning
operator's opt-out waiver request.
E. Technical Issues
9. In the BRS/EBS 4th MO&O, we take the following actions with
respect to the technical rules:
Height Benchmarking Rule. Requires a new or modified base
station operating outside its height benchmark to cure interference to
a base station operating within its height benchmark within 24 hours,
either by limiting its received signal at the other party's base
station to no more than -107 dBm/5.5 MHz or by reducing its antenna
height to comply with the height benchmark. If the interferer is an
existing base station that is causing interference to a new base
station, the existing licensee has 90 days to comply; modifies the
formula to calculate the height benchmark as proposed by Wireless
Communications Association International, Inc. (WCA); declines to
establish a rule requiring that parties cooperate in good faith to
avoid interference.
Out-of-band Emissions. Declines to require all user
stations, as opposed to mobile digital user stations, to attenuate
their emissions at least 55 + 10 (log (P) dB measured 5.5 megahertz
from the channel edge; clarifies that when two or more contiguous
channels are combined to form a single channel, out-of-band emissions
are to be measured three megahertz from the outermost edges of the
combined channel; requires that a new or modified base station comply
with the out-of-band emission within 24 hours of receipt of a
documented interference complaint from the first adjacent channel
licensee. If the interferer is an existing base station that is causing
interference to a new base station, the existing licensee has 60 days
to comply; affirms the decision to limit the right to file a documented
interference complaint to first adjacent channel licensees.
Geographic Service Area Boundaries. Declines to modify the
methodology used to divide overlapping geographic service areas;
affirms the policies adopted for treating pending applications for new
or modified stations in the geographic service area framework.
Grandfathering EBS Facilities. Allows EBS facilities in
the Middle Band Segment to exceed the -73.0 dBW/m2 signal
strength limit post-transition if needed to comply with the mandate
that an EBS licensee be provided with facilities substantially similar
to its pre-transition facilities.
Technical Corrections. Corrects various typographical
errors in the existing rules.
Simultaneous Operation on Old and New BRS Channels 1 and
2/2A. Allows BRS Channel 1 and 2/2A licensees to operate simultaneously
in their old channel locations in the 2150-2160/62 MHz band and their
temporary, pre-transition locations at 2496-2500 MHz and 2686-2690 MHz
band until every subscriber is relocated to the 2.5 GHz band.
10. In the Big LEO 3rd Order on Reconsideration and AWS 6th MO&O,
we defer consideration of a petition for reconsideration filed by the
Society of Broadcast Engineers asking us to adopt a revised band plan
for Broadcast Auxiliary Service (BAS) Channels A8-A10 that would remove
BAS operations from the 2496-2502 MHz band. We deny BellSouth's request
that we modify the pfd limits applicable to Code Division Multiple
Access Mobile Satellite Service licensees in the 2496-2500 MHz band to
correspond to the more stringent limits set forth in United States
proposals to the World Radio Conference regarding protection of
terrestrial operations in the 2500-2690 MHz band.
11. In the BRS/EBS 4th MO&O, we deny a request that primary BRS
Channel 2 licensees not be required to split the football with
secondary BRS Channel 2 licensees or with BRS Channel 2A licensees.
F. Grandfathered E and F Group Channel EBS Stations
12. In the 4th MO&O, the Commission denies petitions concerning
overlaps between grandfathered EBS E and F Group licensees and co-
channel BRS E and F Group licensees and affirm the existing rule Sec.
27.1206 to eliminate overlaps of 50 percent or greater between
grandfathered E and F Group channel EBS stations and co-channel
incumbent BRS stations by splitting the football. Also, the Commission
denies a petition asking for procedural changes to the 90-day
negotiation period for significant GSA overlaps (more than 50 percent)
between grandfathered EBS E and F Group channel licensees and incumbent
BRS E and F Group channel licensees. In the case where the GSAs overlap
50% or greater, the Commission concluded that different treatment was
warranted. Where there is a major overlap of service areas, splitting
the football may no longer be the best solution for accommodating the
needs of both licensees. In those cases, the Commission established a
90-day mandatory negotiation period during which both the BRS and EBS
licensees have an explicit duty to work to accommodate each other's
communications requirements. If, at the end of 90 days, the parties
cannot reach a mutual agreement, the Commission then will split the
football on its own accord.
13. All BRS and EBS licensees, including grandfathered E and F
Group channel EBS licensees and incumbent BRS licenses that ``split-
the-football'' with such licensees, may partition, disaggregate,
assign, or transfer their spectrum. The use of the splitting the
football mechanism to divide overlapping service areas does not
preclude subsequent agreements to partition, disaggregate, assign, or
transfer spectrum. The E and F channels, however, are classified as
both EBS and BRS spectrum. We have granted waivers to allow assignments
or transfers of grandfathered EBS stations
[[Page 26035]]
to BRS licensees upon a suitable public interest showing. Similarly,
upon a similar showing, an EBS licensee could partition part of its
service area or disaggregate its spectrum to its co-channel BRS
licensee.
G. Gulf of Mexico Proceeding and Related Issues
14. In this 4th MO&O, we reestablish three service areas in the
Gulf of Mexico as requested by the American Petroleum Institute,
establish the boundary of those service areas 12 nautical miles from
the shore, and apply our existing technical rules to the Gulf Service
Area which will provide Gulf licensees with the flexibility necessary
to provide service.
H. Leasing
15. The Commission clarifies that EBS excess capacity leases
entered into prior to January 10, 2005 and that contain an automatic
renewal clause, are grandfathered after January 10, 2005 if they have
an automatic renewal clause effective after January 10, 2005, only to
the extent that such leases do not exceed 15 years in total length
(including the automatic renewal period(s)). This decision is
consistent with our decision in the Two-Way Order on Reconsideration.
Thus, these leases cannot be extended in perpetuity. To further
clarify, lease terms for EBS leases entered under the rules and
policies of the BRS/EBS R&O (those entered into between January 10,
2005 and July 18, 2006) are not limited by the Commission's rules (but
are subject to relevant state laws limiting the length of contracts).
Leases entered into under the rules and policies of the BRS/EBS 3rd
MO&O (on or after July 19, 2006) may be up to 30 years in length, so
long as the EBS licensee retains the right at year 15 and every 5 years
thereafter to review its educational needs.
16. The Commission declines to void EBS leases for one-way only
video services entered into prior to the release of the Two-Way Order.
While we are concerned by the situation, we do not have the authority
to void contracts executed by two private parties under the laws of
individual states. We find, however, that the alleged unknown start
date is contrary to the rules and policies adopted by the Commission in
the Two-Way Order, which limited the term of EBS leases to 15 years
from the date they are executed between the parties. Any other
interpretation of the Two-Way Order would permit the warehousing of
valuable spectrum for decades and is contrary to the underlying purpose
of the rule.
17. In the 4th MO&O, the Commission grants a petition and amends
rules to permit lessees to offer EBS licensees/lessors the actual
equipment used or comparable equipment on lease termination. In the
BRS/EBS 3rd MO&O, the Commission amended Sec. 27.1214(c) to clarify
that the EBS licensee/lessor could ``purchase or lease dedicated common
equipment used for educational purposes in the event that the spectrum
leasing arrangement'' was terminated by either the EBS licensee/lessor
or the lessee. We agree that the proposed rule change is an appropriate
modification that reflects the fact that equipment is often shared
among multiple licensees.
I. Substantial Service
18. In the 4th MO&O, the Commission denies a petition asking that
licensees be permitted to demonstrate substantial service based solely
on past-discontinued service. The Commission adopted a substantial
service standard to ensure the prompt delivery of service to rural
areas, to prevent stockpiling or warehousing of spectrum by licensees
or permittees, to promote investment in and rapid deployment of new
technologies and services, and to facilitate the availability of
broadband to all Americans. Permitting licensees to demonstrate
substantial service by using past-discontinued service alone would not
achieve any of these goals. Nevertheless, the Commission, by permitting
the use of past-discontinued service as a factor in the substantial
service determination, struck the appropriate balance between
encouraging broadband development in the 2.5 GHz band and recognizing
that licensees were permitted to discontinue service in anticipation of
the transition to the new band plan and technical rules.
19. In the 4th MO&O, the Commission agrees that it is appropriate
to give some relief to licensees whose GSAs are heavily truncated to
remedy a situation created by several factors and grants a petition
asking for a new safe harbor for heavily encumbered or highly truncated
BTAs and GSAs. We adopt a rule allowing licensees whose GSA is less
than 1924 square miles in size to demonstrate substantial service by
combining its GSA with an overlapping co-channel station licensed or
leased by the licensee or its affiliate.
J. EBS Eligibility
20. We grant a petition asking us to update the EBS eligibility
rules to reflect the wider variety of services EBS licensees will use
and offer. In particular, as written, the rules contemplate video
programming where the licensee will know the specific content being
offered in advance. We amend Sec. 27.1201(a)(3) of the Commission's
rules to clarify that an educational institution may receive education-
enhancing broadband services, which it intends to use in furtherance of
its educational mission. We also amend the language in Sec.
27.1201(a)(3) regarding the distance from the transmit site for
qualified schools supplying letters to be based on distance from the
proposed center reference point, and should be further qualified to
ensure that such school will be within the proposed geographic service
area.
21. The Commission amends paragraph (d) of Sec. 27.1201 of the
Commission's rules to clarify that commercial EBS licensees are not
subject to the educational programming requirements in Sec. 27.1203(b)
through (d) of the Commission's rules or the special EBS leasing
requirements contained in Sec. 27.1214 of the Commission's rules.
K. Mutually Exclusive Applications
22. In the 4th MO&O, the Commission denies a petition asking the
Commission to reinstate pending mutually exclusive applications for new
EBS stations. The Commission rejects the argument that D.C. Circuit's
holding in Kessler v. FCC prohibited the dismissal of mutually
exclusive applications. The dismissal of the mutually exclusive
applications was necessary because neither the Commission nor the
parties could resolve this mutual exclusivity under the then applicable
site-based licensing scheme. The dismissal of those applications,
therefore, furthers the Commission's goal of developing a licensing
scheme that not only resolves issues of mutual exclusivity, but also
ensures the efficient use of EBS spectrum by educators. Allowing the
mutually exclusive applications to remain on file would create
considerable uncertainty for potential proponents who would be
uncertain of the ultimate licensee in a market.
III. Declaratory Ruling
23. In this Declaratory Ruling, we clarify the treatment of the
splitting the football policy for overlapping GSAs. On January 25,
2007, the Broadband Division of the Wireless Telecommunications Bureau
granted waivers nunc pro tunc to 41 late-filed EBS renewal
applications. On September 28, 2007, Clearwire, Catholic Television
Network/National ITFS Association (CTN/NIA), WCA, NextWave, Sprint
Nextel, and Xanadoo (the Joint Commenters) filed a letter
[[Page 26036]]
proposing clarifications that they believe represent a consensus
position of a majority of the 2.5 GHz industry and that, on balance,
most effectively and fairly advance the Commission's 2.5 GHz band goals
and objectives. The Joint Commenters ask that we clarify our splitting
the football treatment of expired licenses.
24. In addition, four licensees--Instructional Telecommunications
Foundation, Inc. (ITF), New Trier Township, High School District 203
(New Trier), Shekinah Network (Shekinah) and Boston Catholic Television
Center (BCTC)--have asked the Commission to issue a declaratory ruling
that their Stations do not have to split the football with overlapping
stations that were expired on January 10, 2005.
25. In response to the petitions for declaratory ruling and other
filings we have considered, we issue the following clarifications of
our splitting the football policy:
An active BRS or EBS licensee whose former protected
service area overlapped with a co-channel license that was expired on
January 10, 2005 need not split the football with such expired license
if the licensee has not had its license reinstated.
If a BRS or EBS license was expired on January 10, 2005,
and such license is later reinstated nunc pro tunc pursuant to a waiver
granted for a late-filed renewal application granted after the adoption
date of this BRS/EBS Fourth Memorandum Opinion and Order, that
licensee's geographic service shall not include any portion of its
former protected service area that overlapped with another licensee
whose license was in active status on January 10, 2005 and on the date
the expired licensee's late-filed renewal application was granted,
unless a finding is made that splitting the football is appropriate
because of manifest Commission error or other unique circumstances.
IV. Procedural Matters
26. Paperwork Reduction Analysis: This document contains new
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. It will be submitted to the
Office of Management and Budget (OMB) for review under section 3507(d)
of the PRA. OMB, the general public, and other Federal agencies are
invited to comment on the new information collection requirements
contained in this proceeding. In addition, we note that pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we previously sought specific comment on how the
Commission might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
27. In this present document, we have assessed the effects of
requiring licensees to provide information concerning their base
stations to any nearby licensee upon request, and find that this
requirement will benefit companies with fewer than 25 employees because
it will help them to enjoy interference-free operations. We anticipate
that the information exchange will consist of a limited number of
technical parameters of a licensee's operations that licensees will
have already established and recorded for their own operational
purposes. Because licensees will already have such information at their
disposal, it will not be burdensome to convey such information when
requested. Additionally, because licensees will only be required to
submit such information upon request from a neighboring licensee, this
significantly limits the amount of potential requests for information.
Therefore, we conclude that this information exchange will not burden
companies with fewer than 25 employees.
28. In addition to filing comments with the Secretary, a copy of
any comments on the information collections contained herein should be
submitted to Judith Boley Herman, Federal Communications Commission,
445 12th Street, SW., Room 1-B441, Washington, DC 20554, or via the
Internet to <Judith-B.Herman@fcc.gov>, and to Nicholas Fraser, Office
of Management and Budget (OMB), via e-mail to Nicholas--A.--Fraser@
omb.eop.gov or via fax at 202-395-5167.
V. Final Regulatory Flexibility Analysis for BRS/EBS Fourth Memorandum
Opinion and Order
29. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), we incorporated an Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on a
substantial number of small entities by the policies and rules proposed
in the Further Notice of Proposed Rule Making (FNPRM). Because we amend
the rules in this BRS/EBS 4th MO&O, we have included this Final
Regulatory Flexibility Analysis (FRFA). This present FRFA conforms to
the RFA.
A. Need for, and Objectives of the Rules
30. In the BRS/EBS 4th MO&O, we continue to modify our rules to
enable the transition of the 2.5 GHz band and the provision of new and
innovative wireless services. Today, we adopt part I, subpart Q as the
competitive bidding rules for available and unassigned Broadband Radio
Service (BRS) spectrum; designated entity rules to provide bidding
credits for small businesses, very small businesses, and entrepreneurs;
modify technical rules concerning emission limits, signal strength
limits, and height benchmarking; special safe harbors for licensees
whose Geographic Service Area (GSA) is heavily encumbered or highly
truncated; and create three Gulf of Mexico Service Area zones.
31. We believe the rules we adopt today will both encourage the
enhancement of existing services using this band and promote the
development of new innovative services to the public, such as providing
wireless broadband services, including high-speed Internet access and
mobile services. We also believe that our new rules will allow
licensees to adapt quickly to changing market conditions and the
marketplace, rather than to government regulation, in determining how
this band can best be used.
B. Summary of Significant Issues Raised by Public Comments in Response
to the FRFA
32. No comments were submitted specifically in response to the
IRFA.
C. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
33. 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. The RFA generally defines the term
``small entity'' as having the same meaning as the terms, ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term small business concern'' under the Small Business
Act. 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 SBA. A small
organization is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
Nationwide, as of 2002, there were approximately 1.6 million small
organizations. 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.''
[[Page 26037]]
The term ``small governmental jurisdiction'' is defined generally as
``governments of cities, towns, townships, villages, school districts,
or special districts, with a population of less than fifty thousand.''
Census Bureau data for 2002 indicate that there were 87,525 local
governmental jurisdictions in the United States. We estimate that, of
this total, 84,377 entities were ``small governmental jurisdictions.''
Thus, we estimate that most governmental jurisdictions are small.
Below, we discuss the total estimated numbers of small businesses that
might be affected by our actions.
34. Broadband Radio Service systems, previously referred to as
Multipoint Distribution Service (MDS) and Multichannel Multipoint
Distribution Service (MMDS) systems, and ``wireless cable,'' transmit
video programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)). In
connection with the 1996 BRS auction, the Commission established a
small business size standard as an entity that had annual average gross
revenues of no more than $40 million in the previous three calendar
years. The BRS auctions resulted in 67 successful bidders obtaining
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67
auction winners, 61 met the definition of a small business. BRS also
includes licensees of stations authorized prior to the auction. At this
time, we estimate that of the 61 small business BRS auction winners, 48
remain small business licensees. In addition to the 48 small businesses
that hold BTA authorizations, there are approximately 392 incumbent BRS
licensees that are considered small entities. After adding the number
of small business auction licensees to the number of incumbent
licensees not already counted, we find that there are currently
approximately 440 BRS licensees that are defined as small businesses
under either the SBA or the Commission's rules. Some of those 440 small
business licensees may be affected by the decisions in this BRS/EBS 4th
MO&O.
35. In addition, the SBA has developed a small business size
standard for Cable and Other Program Distribution, which includes all
such companies generating $13.5 million or less in annual receipts.
According to Census Bureau data for 2002, there were a total of 1,191
firms in this category that operated for the entire year. Of this
total, 1,087 firms had annual receipts of under $10 million, and 43
firms had receipts of $10 million or more but less than $25 million.
Consequently, we estimate that the majority of providers in this
service category are small businesses that may be affected by the rules
and policies adopted herein. This SBA small business size standard is
applicable to EBS. There are presently 2,032 EBS licensees. All but 100
of these licenses are held by educational institutions. Educational
institutions are included in this analysis as small entities. Thus, we
estimate that at least 1,932 licensees are small businesses.
36. There are presently 2,032 EBS licensees. All but 100 of these
licenses are held by educational institutions. Educational institutions
may be included in the definition of a small entity. EBS is a non-
profit non-broadcast service. We do not collect, nor are we aware of
other collections of, annual revenue data for EBS licensees. We find
that up to 1,932 of these educational institutions are small entities
that may take advantage of our amended rules to provide additional
flexibility to EBS.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
37. This BRS/EBS 4th MO&O modifies the reporting, recordkeeping, or
other compliance requirements previously adopted in this proceeding. We
are adopting competitive bidding procedures for available and
unassigned BRS spectrum, including small business size standards and
bidding credits for a ``small business'' (an entity with attributed
average annual gross revenues not exceeding $40 million for the
preceding three years), a ``very small business'' (an entity with
attributed average gross revenues not exceeding $15 million for the
preceding three years), and an ``entrepreneur'' (an entity with
attributed average gross revenues not exceeding $3 million the
preceding three years). We are also adopting two new safe harbors to
enable BRS and EBS licensees whose GSA is heavily encumbered or highly
truncated to meet the performance requirements for the 2.5 GHz band. We
are also creating three new Gulf of Mexico GSAs, which will enable the
provision of 2.5 GHz band wireless services in the Gulf of Mexico in
the future. We are changing the technical rules concerning emission
limits, signal strength limits, and antenna height benchmarking,
including requiring licensees to exchange information.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
38. 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 such 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.''
39. Regarding our decision to adopt competitive bidding rules, we
anticipate that our decision to adopt small business size standards and
bidding credits for entities that meet the definition of small
business, very small business, or entrepreneur will not have a
significant economic impact on small entities. Because the BRS spectrum
in the 2.5 GHz band was auctioned in 1996, only 70 BTA licenses (of the
493 licenses originally available in 1996) are available for
reassignment by competitive bidding.
40. Regarding our decision to adopt two new safe harbors for the
demonstration of substantial service compliance, we do not anticipate
any significant economic impact on small entities. These two safe
harbors apply only to licensees that have heavily encumbered or highly
truncated GSAs. Although the applicability of these two safe harbors is
limited, they will enable licensees to meet both our performance
requirements and our interference protection rules.
41. Regarding our decision to adopt three new Gulf of Mexico
Service Area Zones, we do not anticipate any significant impact on
small entities. We anticipate that spectrum in these GSAs will be used
on oil platforms in the Gulf of Mexico.
42. Regarding our decision to modify various technical rules, we do
not anticipate any significant impact on small entities. These
modifications are minor.
43. The rules set forth in the BRS/EBS 4th MO&O will affect all
entities that intend to provide BRS or EBS service in the 2.5 GHz band.
VI. Report to Congress
44. The Commission will send a copy of this Fourth Memorandum
Opinion and Order, including this FRFA, in a
[[Page 26038]]
report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act. In addition, the Commission
will send a copy of this Fourth Memorandum Opinion and Order, including
this FRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of this Fourth Memorandum Opinion and Order and
FRFA (or summaries thereof) will also be published in the Federal
Register.
VII. Ordering Clauses
45. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 7,
10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and
706 of the Communications 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,
and 706, that this Third Order on Reconsideration, Sixth Memorandum
Opinion and Order, and Fourth Memorandum Opinion and Order is hereby
adopted.
46. It is further ordered that the Petitions for Reconsideration
filed in these proceedings are granted to the extent indicated and are
otherwise denied.
47. It is further ordered, pursuant to section 4(i) of the
Communications Act of 1934, 47 U.S.C. 154(i), and Sec. 1.2 of the
Commission's rules, 47 CFR 1.2, that the petitions for declaratory
ruling filed by Instructional Telecommunications Foundation, Inc. on
March 13, 2007, New Trier High School District 203 on July 26,
2007, Shekinah Network on November 27, 2007, and Boston Catholic
Television Center, Inc. on December 14, 2007 are granted to the extent
indicated herein and are otherwise denied.
48. It is further ordered that the proceeding entitled Amendment of
parts 21 and 74 of the Commission's rules with regard to licensing in
the Multipoint Distribution Service and in the Instructional Television
Fixed Service for the Gulf of Mexico, WT Docket No. 02-68 is
reinstated.
49. It is further ordered that the Final Regulatory Flexibility
Analysis is adopted.
50. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Third Order on Reconsideration, Sixth Memorandum Opinion
and Order, and Fourth Memorandum Opinion and Order and Second Notice of
Proposed Rulemaking and Declaratory Ruling, including the Final
Regulatory Flexibility Analysis and Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 27
Communications common carriers, Communications equipment, Equal
employment opportunity, Radio, Reporting and recordkeeping
requirements, Satellites, Securities, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 27 as follows:
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
0
1. The authority citation for part 27 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and
337 unless otherwise noted.
0
2. Amend Sec. 27.5 by revising paragraph (i)(2)(iii) and the note to
paragraph (i)(2) to read as follows:
Sec. 27.5 Frequencies.
(i) * * *
(2) * * *
(iii) Upper Band Segment (UBS): The following channels shall
constitute the Upper Band Segment:
BRS Channel KH1: 2614.00000-2614.33333 MHz.
BRS Channel KH2: 2614.33333-2614.66666 MHz.
BRS Channel KH3: 2614.66666-2615.00000 MHz.
EBS Channel KG1: 2615.00000-2615.33333 MHz.
EBS Channel KG2: 2615.33333-2615.66666 MHz.
EBS Channel KG3: 2615.66666-2616.00000 MHz.
BRS Channel KF1: 2616.00000-2616.33333 MHz.
BRS Channel KF2: 2616.33333-2616.66666 MHz.
BRS Channel KF3: 2616.66666-2617.00000 MHz.
BRS Channel KE1: 2617.00000-2617.33333 MHz.
BRS Channel KE2: 2617.33333-2617.66666 MHz.
BRS Channel KE3: 2617.66666-2618.00000 MHz.
BRS Channel 2: 2618-2624 MHz.
BRS/EBS Channel E1: 2624-2629.5 MHz.
BRS/EBS Channel E2: 2629.5-2635 MHz.
BRS/EBS Channel E3: 2635-2640.5 MHz.
BRS/EBS Channel F1: 2640.5-2646 MHz.
BRS/EBS Channel F2: 2646-2651.5 MHz.
BRS/EBS Channel F3: 2651.5-2657 MHz.
BRS Channel H1: 2657-2662.5 MHz.
BRS Channel H2: 2662.5-2668 MHz.
BRS Channel H3: 2668-2673.5 MHz.
EBS Channel G1: 2673.5-2679 MHz.
EBS Channel G2: 2679-2684.5 MHz.
EBS Channel G3: 2684.5-2690 MHz.
Note to paragraph (i)(2): No 125 kHz channels are provided for
channels in operation in this service. The 125 kHz channels
previously associated with these channels have been reallocated to
Channel G3 in the upper band segment.
* * * * *
0
3. Amend Sec. 27.13 by adding new paragraph (h) to read as follows:
Sec. 27.13 License period.
* * * * *
(h) BRS and EBS. BRS and EBS authorizations shall have a term not
to exceed ten years from the date of original issuance or renewal.
Unless otherwise specified by the Commission, incumbent BRS
authorizations shall expire on May 1 in the year of expiration.
0
4. Amend Sec. 27.14 by adding new paragraph (o) to read as follows:
Sec. 27.14 Construction requirements; Criteria for renewal.
* * * * *
(o) BRS and EBS licensees must make a showing of ``substantial
service'' no later than May 1, 2011. Incumbent BRS licensees must file
their ``substantial service'' showing with their renewal application.
``Substantial service'' is defined as service which is sound,
favorable, and substantially above a level of mediocre service which
just might minimally warrant renewal. Substantial service for BRS and
EBS licensees is satisfied if a licensee meets the requirements of
paragraph (o)(1) or (o)(2) of this section. If a licensee has not met
the requirements of paragraph (o)(1) or (o)(2) of this section, then
demonstration of ``substantial service'' shall proceed on a case-by-
case basis. All substantial service determinations will be made on a
license-by-license basis. Except for BTA licenses, BRS licensees must
file their ``substantial service'' showing with their renewal
applications. Failure by any licensee to meet this requirement will
result in forfeiture of the license and the licensee will be ineligible
to regain it.
(1) A BRS or EBS licensee has provided ``substantial service'' by:
[[Page 26039]]
(i) Constructing six permanent links per one million people for
licensees providing fixed point-to-point services;
(ii) Providing coverage of at least 30 percent of the population of
the licensed area for licensees providing mobile services or fixed
point-to-multipoint services;
(iii) Providing service to ``rural areas'' (a county (or
equivalent) with a population density of 100 persons per square mile or
less, based upon the most recently available Census data) and areas
with limited access to telecommunications services:
(A) For mobile service, where coverage is provided to at least 75%
of the geographic area of at least 30% of the rural areas within its
service area; or
(B) for fixed service, where the BRS or EBS licensee has
constructed at least one end of a permanent link in at least 30% of the
rural areas within its licensed area.
(iv) Providing specialized or technologically sophisticated service
that does not require a high level of coverage to benefit consumers; or
(v) Providing service to niche markets or areas outside the areas
served by other licensees.
(2) An EBS licensee has provided ``substantial service'' when:
(i) The EBS licensee is using its spectrum (or spectrum to which
the EBS licensee's educational services are shifted) to provide
educational services within the EBS licensee's GSA;
(ii) the EBS licensee's license is actually being used to serve the
educational mission of one or more accredited public or private
schools, colleges or universities providing formal educational and
cultural development to enrolled students; or
(iii) the level of service provided by the EBS licensee meets or
exceeds the minimum usage requirements specified in Sec. 27.1214.
(3) An EBS or BRS licensee may be deemed to provide substantial
service through a leasing arrangement if the lessee is providing
substantial service under paragraph (o)(1) of this section. The EBS
licensee must also be otherwise in compliance with this Chapter
(including the programming requirements in Sec. 27.1203 of this
subpart).
(4) If the GSA of a licensee is less than 1924 square miles in
size, and there is an overlapping co-channel station licensed or leased
by the licensee or its affiliate, substantial service may be
demonstrated by meeting the requirements of paragraph (o)(1) or (o)(2)
of this section with respect to the combined GSAs of both stations.
(5) If the GSA of a BTA authorization holder, is less than one-half
of the area within the BTA for every BRS channel, substantial service
may be demonstrated for the licenses in question by meeting the
requirements of paragraph (o)(1) or (o)(2) of this section with respect
to the combined GSAs of the BTA authorization holder, together with any
incumbent authorizations licensed or leased by the licensee or its
affiliates.
0
5. Amend Sec. 27.53 by revising paragraph (m) introductory text and
paragraphs (m)(2) and (m)(4) to read as follows:
Sec. 27.53 Emission limits.
* * * * *
(m) For BRS and EBS stations, the power of any emissions outside
the licensee's frequency bands of operation shall be attenuated below
the transmitter power (P) measured in watts in accordance with the
standards below. If a licensee has multiple contiguous channels, out-
of-band emissions shall be measured from the upper and lower edges of
the contiguous channels.
* * * * *
(2) For digital base stations, the attenuation shall be not less
than 43 + 10 log (P) dB, unless a documented interference complaint is
received from an adjacent channel licensee with an overlapping
Geographic Service Area. Mobile Satellite Service licensees operating
on frequencies below 2495 MHz may also submit a documented interference
complaint against BRS licensees operating on channel BRS No. 1 on the
same terms and conditions as adjacent channel BRS or EBS licensees.
Provided that a documented interference complaint cannot be mutually
resolved between the parties prior to the applicable deadline, then the
following additional attenuation requirements shall apply:
(i) If a pre-existing base station suffers harmful interference
from emissions caused by a new or modified base station located 1.5 km
or more away, within 24 hours of the receipt of a documented
interference complaint the licensee of the new or modified base station
must attenuate its emissions by at least 67 + 10 log (P) dB measured at
3 megahertz, above or below, from the channel edge of its frequency
block and shall immediately notify the complaining licensee upon
implementation of the additional attenuation. No later than 60 days
after the implementation of such additional attenuation, the licensee
of the complaining base station must attenuate its base station
emissions by at least 67 + 10 log (P) dB measured at 3 megahertz, above
or below, from the channel edge of its frequency block of the new or
modified base station.
(ii) If a pre-existing base station suffers harmful interference
from emissions caused by a new or modified base station located less
than 1.5 km away, within 24 hours of receipt of a documented
interference complaint the licensee of the new or modified base station
must attenuate its emissions by at least 67 + 10 log (P)-20 log (Dkm/
1.5) dB measured at 3 megahertz, above or below, from the channel edge
of its frequency block of the complaining licensee, or if both base
stations are co-located, limit its undesired signal level at the pre-
existing base station receiver(s) to no more than -107 dBm measured in
a 5.5 megahertz bandwidth and shall immediately notify the complaining
licensee upon such reduction in the undesired signal level. No later
than 60 days after such reduction in the undesired signal level, the
complaining licensee must attenuate its base station emissions by at
least 67 + 10 log (P) dB measured at 3 megahertz, above or below, from
the channel edge of its frequency block of the new or modified base
station.
(iii) If a new or modified base station suffers harmful
interference from emissions caused by a pre-existing base station
located 1.5 km or more away, within 60 days of receipt of a documented
interference complaint the licensee of each base station must attenuate
its base station emissions by at least 67 + 10 log (P) dB measured at 3
megahertz, above or below, from the channel edge of its frequency block
of the other licensee.
(iv) If a new or modified base station suffers harmful interference
from emissions caused by a pre-existing base station located less than
1.5 km away, within 60 days of receipt of a documented interference
complaint: (a) The licensee of the new or modified base station must
attenuate its OOBE by at least 67 + 10 log (P)-20 log (Dkm/1.5)
measured 3 megahertz above or below, from the channel edge of its
frequency block of the other licensee, or if the base stations are co-
located, limit its undesired signal level at the other base station
receiver(s) to no more than -107 dBm measured in a 5.5-megahertz
bandwidth; and (b) the licensee causing the interference must attenuate
its emissions by at least 67 + 10 log (P) dB measured at 3 megahertz,
above or below, from the channel edge of its frequency block of the new
or modified base station.
(v) For all fixed digital user stations, the attenuation factor
shall be not less
[[Page 26040]]
than 43 + 10 log (P) dB at the channel edge.
* * * * *
(4) For mobile digital stations, the attenuation factor shall be
not less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log
(P) dB at 5.5 megahertz from the channel edges. Mobile Satellite
Service licensees operating on frequencies below 2495 MHz may also
submit a documented interference complaint against BRS licensees
operating on BRS Channel 1 on the same terms and conditions as adjacent
channel BRS or EBS licensees.
* * * * *
0
6. Amend Sec. 27.55 by revising paragraphs (a)(4)(i), (ii), and (iii)
to read as follows:
Sec. 27.55 Power strength limits.
(a) * * *
(4) * * *
(i) Prior to transition, the signal strength at any point along the
licensee's GSA boundary does not exceed the greater of that permitted
under the licensee's Commission authorizations as of January 10, 2005
or 47 dB[mu]V/m.
(ii) Following transition, for stations in the LBS and UBS, the
signal strength at any point along the licensee's GSA boundary must not
exceed 47 dB[mu]V/m. This field strength is to be measured at 1.5
meters above the ground over the channel bandwidth (i.e., each 5.5 MHz
channel for licensees that hold a full channel block, and for the 5.5
MHz channel for licensees that hold individual channels).
(iii) Following transition, for stations in the MBS, the signal
strength at any point along the licensee's GSA boundary must not exceed
the greater of -73.0 + 10 log(X/6) dBW/m\2\, where X is the bandwidth
in megahertz of the channel, or for facilities that are substantially
similar to the licensee's pre-transition facilities (including
modifications that do not alter the fundamental nature or use of the
transmissions), the signal strength at such point that resulted from
the station's operations immediately prior to the transition, provided
that such operations complied with paragraph (a)(4)(i) of this section.
* * * * *
0
7. Amend Sec. 27.1201 by revising paragraphs (a)(3) and (d) to read as
follows:
Sec. 27.1201 EBS eligibility.
(a) * * *
(3) Those applicant organizations whose eligibility is established
by service to accredited institutional or governmental organizations
must submit documentation from proposed receive sites demonstrating
that they will receive and use the applicant's educational usage. In
place of this documentation, a State educational television (ETV)
commission may demonstrate that the public schools it proposes to serve
are required to use its proposed educational usage. Documentation from
proposed receive sites which are to establish the eligibility of an
entity not serving its own enrolled students for credit should be in
letter form, written and signed by an administrator or authority who is
responsible for the receive site's curriculum planning. No receive site
more than 35 miles from the proposed station's central reference point,
or outside the applicants' proposed GSA, shall be used to establish
basic eligibility. Where broadband or data services are proposed, the
letter should indicate that the data services will be used in
furtherance of the institution's educational mission and will be
provided to enrolled students, faculty and staff in a manner and in a
setting conducive to educational usage. Where traditional educational
or instructional video services are proposed, the letter should
indicate that the applicant's program offerings have been viewed and
that such programming will be incorporated in the site's curriculum.
Where educational or instructional video services are proposed, the
letter should discuss the types of programming and hours per week of
formal and informal programming expected to be used and the site's
involvement in the planning, scheduling and production of programming.
If other levels of authority must be obtained before a firm commitment
to utilize the service can be made, the nature and extent of such
additional authorization(s) must be provided.
* * * * *
(d) This paragraph applies to EBS licensees and applications
licensed or filed pursuant to the provisions of Sec. 27.1201(c)
contained in the edition of 47 CFR parts 20 through 39, revised as of
October 1, 2005, or Sec. Sec. 74.990 through 74.992 contained in the
edition of 47 CFR parts 70 through 79, revised as of October 1, 2004,
and that do not meet the eligibility requirements of paragraph (a) of
this section. Such licensees may continue to operate pursuant to the
terms of their existing licenses, and their licenses may be renewed,
assigned, or transferred, so long as the licensee is otherwise in
compliance with this chapter. Applications filed pursuant to the
provisions of Sec. 27.1201(c) contained in the edition of 47 CFR parts
20 through 39, revised as of October 1, 2005 or Sec. Sec. 74.990
through 74.992 contained in the edition of 47 CFR parts 70 through 79,
revised as of October 1, 2004 may be processed and granted, so long as
such applications were filed prior to July 19, 2006. The provisions of
Sec. Sec. 27.1203(b) through (d) and 27.1214 of this subpart do not
apply to licenses governed by this paragraph.
0
8. Amend Sec. 27.1207 by revising paragraph (a) and the introductory
text of paragraph (b) to read as follows:
Sec. 27.1207 BTA license authorization.
(a) Winning bidders must file an application (FCC Form 601) for an
initial authorization.
(b) Initial authorizations for BRS granted after January 1, 2008,
shall be blanket licenses for all BRS frequencies identified in Sec.
27.5(i)(2) and based on the geographic areas identified in Sec.
27.1208. Blanket licenses cover all mobile and response stations.
* * * * *
0
9. Revise Sec. 27.1208 to read as follows:
Sec. 27.1208 BTA Service areas.
Except for incumbent BRS licenses, BRS service areas are Basic
Trading Areas (BTAs) or additional service areas similar to BTAs
adopted by the Commission. BTAs are based on the Rand McNally 1992
Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39. The
following are additional BRS service areas in places where Rand McNally
has not defined BTAs: American Samoa; Guam; Gulf of Mexico Zone A; Gulf
of Mexico Zone B; Gulf of Mexico Zone C; Northern Mariana Islands;
Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan, Puerto Rico; and the
United States Virgin Islands. The boundaries of Gulf of Mexico Zone A
are from an area twelve nautical miles from the shoreline at mean high
tide on the north and east, to the limit of the Outer Continental Shelf
to the south, and to longitude 91[deg]00' to the west. The boundaries
of Gulf of Mexico Zone B are from an area twelve nautical miles from
the shoreline at mean high tide on the north, to the limit of the Outer
Continental Shelf to the south, to longitude 91[deg]00' to the east,
and to longitude 94[deg]00' to the west. The boundaries of Gulf of
Mexico Zone C are from an area twelve nautical miles from the shoreline
at mean high tide on the north and west, to longitude 94[deg]00' to the
east, and to a line 281 kilometers from the reference point at Linares,
N.L., Mexico on the southwest. The Mayaguez/Aguadilla-Ponce, PR,
service
[[Page 26041]]
area consists of the following municipios: Adjuntas, Aguada, Aguadilla,
Anasco, Arroyo, Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla,
Hormigueros, Isabela, Jayuya, Juana Diaz, Lajas, Las Marias, Maricao,
Maunabo, Mayaguez, Moca, Patillas, Penuelas, Ponce, Quebradillas,
Rinc[oacute]n, Sabana Grande, Salinas, San German, Santa Isabel,
Villalba and Yauco. The San Juan service area consists of all other
municipios in Puerto Rico.
0
10. Amend Sec. 27.1214 by revising paragraph (c) to read as follows:
Sec. 27.1214 EBS spectrum leasing arrangements and grandfathered
leases.
* * * * *
(c) All spectrum leasing arrangements involving EBS spectrum must
afford the EBS licensee an opportunity to purchase or to lease the
dedicated or common EBS equipment used for educational purposes, or
comparable equipment in the event that the spectrum leasing arrangement
is terminated.
* * * * *
0
11. Add Sec. 27.1217 to read as follows:
Sec. 27.1217 Competitive Bidding Procedures for the Broadband Radio
Service.
Mutually exclusive initial applications for BRS licenses in the
2500-2690 MHz band are subject to competitive bidding. The general
competitive bidding procedures set forth in part 1, subpart Q of this
chapter will apply unless otherwise provided in this subpart.
0
12. Add Sec. 27.1218 to read as follows:
Sec. 27.1218 Designated Entities.
(a) Eligibility for small business provisions. (1) A small business
is an entity that, together with all attributed parties, has average
gross revenues that are not more than $40 million for the preceding
three years.
(2) A very small business is an entity that, together with all
attributed parties, has average gross revenues that are not more than
$15 million for the preceding three years.
(3) An entrepreneur is an entity that, together with all attributed
parties, has average gross revenues that are not more than $3 million
for the preceding three years.
(b) Bidding credits. (1) A winning bidder that qualifies as a small
business, as defined in this section, or a consortium of small
businesses, may use a bidding credit of 15 percent, as specified in
Sec. 1.2110(f)(2)(iii) of this chapter, to lower the cost of its
winning bid on any of the licenses in this subpart.
(2) A winning bidder that qualifies as a very small business, as
defined in this section, or a consortium of very small businesses, may
use a bidding credit of 25 percent, as specified in Sec.
1.2110(f)(2)(ii) of this chapter, to lower the cost of its winning bid
on any of the licenses in this subpart.
(3) A winning bidder that qualifies as an entrepreneur, as defined
in this section, or a consortium of entrepreneurs, may use a bidding
credit of 15 percent, as specified in Sec. 1.2110(f)(2)(i) of this
chapter, to lower the cost of its winning bid on any of the licenses in
this subpart.
0
13. Amend Sec. 27.1221 by revising paragraphs (b) through (e) and
adding a new paragraph (f) to read as follows:
Sec. 27.1221 Interference protection.
* * * * *
(b) Height Benchmarking. Height benchmarking is defined for pairs
of base stations, one in each of two proximate geographic service areas
(GSAs). The height benchmark, which is defined in meters (hbm) for a
particular base station relative to a base station in another GSA, is
equal to the distance, in kilometers, from the base station along a
radial to the nearest point on the GSA boundary of the other base
station squared (Dkm\2\) and then divided by 17. That is, hb (m) =
Dkm\2\/17. A base station antenna will be considered to be within its
applicable height benchmark relative to another base station if the
height in meters of its centerline of radiation above average elevation
(HAAE) calculated along the straight line between the two base stations
in accordance with Sec. Sec. 24.53(b) and (c) of this chapter does not
exceed the height benchmark (hbm). A base station antenna will be
considered to exceed its applicable height benchmark relative to
another base station if the HAAE of its centerline of radiation
calculated along the straight line between the two base stations in
accordance with Sec. Sec. 24.53(b) and (c) of this chapter exceeds the
height benchmark (hbm).
(c) Protection for Receiving Antennas not Exceeding the Height
Benchmark. Absent agreement between the two licensees to the contrary,
if a transmitting antenna of one BRS/EBS licensee's base station
exceeds its applicable height benchmark and such licensee is notified
by another BRS/EBS licensee that it is generating an undesired signal
level in excess of -107 dBm/5.5 megahertz at the receiver of a co-
channel base station that is within its applicable height benchmark,
then the licensee of the base station that exceeds its applicable
height benchmark shall either limit the undesired signal at the
receiver of the protected base station to -107dBm/5.5 megahertz or less
or reduce the height of its transmission antenna to no more than the
height benchmark. If the interfering base station has been modified to
increase the EIRP transmitted in the direction of the protected base
station, it shall be deemed to have commenced operations on the date of
such modification. Such corrective action shall be completed no later
than:
(i) 24 hours after receiving such notification, if the base station
that exceeds its height benchmark commenced operations after the
station that is within its applicable height benchmark; or
(ii) 90 days after receiving such notification, if the base station
that exceeds its height commenced operations prior to the station that
is within its applicable height benchmark. For purposes of this
section, if the interfering base station has been modified to increase
the EIRP transmitted in the direction of the victim base station, it
shall be deemed to have commenced operations on the date of such
modification.
(d) No Protection from a Transmitting Antenna not Exceeding the
Height Benchmark. The licensee of a base station transmitting antenna
less than or equal to its applicable height benchmark shall not be
required pursuant to paragraph (c) of this section to limit that
antennas undesired signal level to -107dBm/5.5 megahertz or less at the
receiver of any co-channel base station.
(e) No Protection for a Receiving-Antenna Exceeding the Height
Benchmark. The licensee of a base station receive antenna that exceeds
its applicable height benchmark shall not be entitled pursuant to
paragraph (c) of this section to insist that any co-channel base
station limit its undesired signal level to -107dBm/5.5 megahertz or
less at the receiver.
(f) Information Exchange. A BRS/EBS licensee shall provide the
geographic coordinates, the height above ground level of the center of
radiation for each transmit and receive antenna, and the date
transmissions commenced for each of the base stations in its GSA within
30 days of receipt of a request from a co-channel BRS/EBS licensee with
an operational base station located in a proximate GSA. Information
shared pursuant to this section shall not be disclosed to other parties
except as required to ensure compliance with this section.
0
14. Amend Sec. 27.1231 by revising paragraph (f) introductory text to
read as follows:
Sec. 27.1231 Initiating the transition.
* * * * *
[[Page 26042]]
(f) Initiation Plan. To initiate a transition, a potential
proponent(s) must submit an Initiation Plan to the Commission at the
Office of the Secretary in Washington, DC on or before January 21,
2009.
* * * * *
0
15. Amend Sec. 27.1236 by revising paragraphs (a), (b)(1), and (b)(6)
to read as follows:
Sec. 27.1236 Self-transitions.
(a) If an Initiation Plan is not filed on or before January 21,
2009 for a BTA, BRS and EBS licensees in that BTA may self-transition
by relocating to their default channel locations specified in Sec.
27.5(i)(2) and complying with Sec. Sec. 27.50(h), 27.53, 27.55 and
27.1221.
* * * * *
(b) * * *
(1) Notify the Secretary of the Commission on or before April 21,
2009 that it will self-transition (see paragraph (a) of this section);
* * * * *
(6) Complete the self-transition on or before October 20, 2010.
* * * * *
[FR Doc. E8-10099 Filed 5-7-08; 8:45 am]
BILLING CODE 6712-01-P