[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Proposed Rules]
[Pages 35995-36013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14423]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 27, 74, 78, and 101
[WT Docket No. 07-195; WT Docket No. 04-356; FCC 08-158]
Service Rules for Advanced Wireless Services in the 1915-1920
MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz Bands
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, we seek comment on service rules for
licensed fixed and mobile services, including Advanced Wireless
Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and
2175-2180 MHz bands. We seek comment on rules for licensing this newly
designated spectrum in a manner that will permit it to be fully and
promptly utilized to bring advanced wireless services to American
consumers. Our objective is to allow for the most effective and
efficient use of spectrum in this band, while also encouraging
development of robust wireless broadband services. We propose to apply
our flexible, market-oriented rules to the band in order to meet this
objective.
DATES: Comments must be filed on or before July 9, 2008, and reply
comments must be filed on or before July 16, 2008.
[[Page 35996]]
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. You may submit comments, identified by WT Docket
No. 07-195, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Daronco Esq., or Paul Malmud
Esq., at 202-418-2486.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rule Making (FNPRM), released June 20, 2008.
The complete text of this document, including attachments and related
Commission documents, is available for inspection and copying during
normal business hours in the FCC Reference Center (Room CY-A257), 445
12th Street, SW., Washington, DC 20554. The complete text of the FNPRM
and related Commission documents may be purchased from the Commission's
copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW.,
Room, CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile
202-488-5563, or you may contact BCPI at its web site http://www.BCPIWEB.com. When ordering documents from BCPI please provide the
appropriate FCC document number, for example, FCC 07-38. The FNPRM is
also available on the Commission's Web site: http://wireless.fcc.gov/index.htm?job=headlines.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on or before
July 9, 2008, and reply comments must be filed on or before July 16,
2008. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
I. Summary of Notice of Proposed Rulemaking
1. In a In this Further Notice of Proposed Rule Making (FNPRM), we
seek comment on proposed service rules for Advanced Wireless Service
(AWS) \1\ spectrum in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180
MHz bands, as set forth in Appendix A. In taking a further step towards
adoption of service rules for these bands, our goal is to promote the
deployment and ubiquitous availability of broadband services across the
country and to facilitate the use of AWS spectrum for the benefit of
consumers.
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\1\ Advanced Wireless Services is the collective term we use for
new and innovative fixed and mobile terrestrial wireless
applications using bandwidth that is sufficient for the provision of
a variety of applications, including those using voice and data
(such as Internet browsing, message services, and full-motion video)
content. Although AWS is commonly associated with so-called third
generation (3G) applications and has been predicted to build on the
successes of such current-generation commercial wireless services as
cellular and Broadband Personal Communications Services (PCS), the
services ultimately provided by AWS licensees are limited only by
the Fixed and Mobile designation of the spectrum we allocate for AWS
and the service rules we ultimately adopt for the bands.
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2. In a Notice of Proposed Rulemaking in WT Docket No. 04-356, the
Commission sought comment on rules for AWS spectrum in the 1915-1920
MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands.\2\ In a
Notice of Proposed Rulemaking in WT Docket No. 07-195, we sought
comment on rules for AWS spectrum in the 2155-2175 MHz band.\3\ To
further supplement these Notices of Proposed Rulemaking and the current
extensive record in these proceedings, we are seeking expedited comment
on a proposed set of rules for these bands. We will consider comments
on these proposed rules in conjunction with the record developed in
response to the various proposals set out in the earlier NPRM's.
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\2\ Service Rules for Advanced Wireless Services in the 1915-
1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, WT
Docket No. 04-356, Service Rules for Advanced Wireless Services in
the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Notice of
Proposed Rulemaking, 19 FCC Rcd 19263 (2004) (AWS-2 NPRM ).
\3\ Service Rules for Advanced Wireless Services in the 2155-
2175 MHz Band, WT Docket No. 07-195, Notice of Proposed Rulemaking,
22 FCC Rcd 17035 (2007) (AWS-3 NPRM ).
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3. Specifically, we propose to adopt application, licensing,
operating, and technical rules for the 2155-2180 MHz band (AWS-3 band),
including rules that would:
[[Page 35997]]
Combine the 2155-2175 MHz band with the 2175-2180 MHz band
in order to create a 25 megahertz block of spectrum.
Permit downlink and uplink transmissions throughout the
entire 2155-2180 MHz band.
Adopt a single nationwide license for the 2155-2180 MHz
band.
Adopt open eligibility for the 2155-2180 MHz band.
Require the licensee to provide free, two-way broadband
Internet service including:
[cir] engineered data rates of at least 768 kbps downstream using
up to 25 percent of the licensee's wireless network capacity.
[cir] o an ``always on'' network-based filtering mechanism.
Require the licensee to provide for open devices and open
applications for its premium service and open devices for its free
service.
Provide an initial license term of ten years and
subsequent renewal terms of ten years.
Require the licensee to provide signal coverage and offer
service to: (1) At least 50 percent of the total population of the
nation within four years of commencement of the license term and ( 2)
at least 95 percent of the total population of the nation at the end of
the 10-year license term.
Allow licensees to disaggregate, partition, and lease the
spectrum.
Provide that mutually exclusive applications should be
resolved through competitive bidding.
Require AWS-3 mobiles to attenuate out-of-band emissions
(OOBE) by 60 + 10log (P) dB outside of the AWS-3 band, and establish a
power limit for AWS-3 mobile devices of 23 dBm/MHz equivalent
isotropically radiated power (EIRP).
Require an OOBE limit of 43 + 10 log (P) dB for AWS-3 base
and fixed downlink stations and a power limit of 1640 watts peak EIRP
in non-rural areas and 3280 watts peak EIRP in rural areas.
4. We also propose to adopt application, licensing, operating, and
technical rules for the 1915-1920 MHz and 1995-2000 MHz bands (H
Block), including rules that would:
License the H Block using exclusive geographic area
licensing on a Basic Trading Area (BTA) basis.
Adopt open eligibility for the H Block.
Provide an initial license term of ten years and
subsequent renewal terms of ten years.
Require an H Block licensee to provide signal coverage and
offer service to: (1) At least 35 percent of the population in each
licensed area within four years and (2) at least 70 percent of the
population in each licensed area at the end of the license term.
Allow licensees to disaggregate, partition, and lease the
spectrum.
Provide that mutually exclusive applications should be
resolved through competitive bidding.
Require H Block licensees in the 1915-1920 MHz band to pay
a pro rata share of expenses previously incurred by UTAM Inc. in
clearing that band.
Adopt both relocation requirements for H Block entrants in
the 1995-2000 MHz band and procedures for cost-sharing among other new
entrants in the Broadcast Auxiliary Service band, including Sprint
Nextel and Mobile Satellite Service entrants.
Prohibit base and fixed transmission in the 1915-1920 MHz
band.
Require mobiles at 1915-1920 MHz to attenuate OOBE by 90 +
10log P dB within the PCS band (1930-1990 MHz band), and establish a
power limit for mobiles of 23 dBm/MHz EIRP.
Prohibit mobile transmission in the 1995-2000 MHz band.
Adopt an OOBE limit of 43 + 10 log (P) dB for base and
fixed stations at 1995-2000 MHz and a power limit of 1640 watts peak
EIRP in non-rural areas and 3280 watts peak EIRP in rural areas.
5. We seek comment on these proposed rules for the AWS-3 band and
the H Block, as set forth in Appendix A. We note that combining the
2155-2175 MHz band with the 2175-2180 MHz band may allow an AWS-3
licensee to make more robust use of this spectrum block while meeting a
stricter OOBE limit than traditionally applied in bands designated for
flexible use, such as the AWS-1 and 700 MHz bands.\4\ To the extent
that commenters do not support combining the 2155-2175 MHz band with
the 2175-2180 MHz band, they should indicate whether, in the
alternative, a more traditional OOBE limit of 43+10log(P) dB would be
appropriate for the 2155-2175 MHz band.
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\4\ See, e.g., 47 CFR 27.53(c)(1)(2), 27.53(h).
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Procedural Matters
Ex Parte Rules--Permit-But-Disclose
6. This is a permit-but-disclose notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed pursuant to the
Commission's rules.\5\
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\5\ See generally 47 CFR 1.1202, 1.1203, 1.1206.
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Initial Paperwork Reduction Analysis
7. This document contains proposed new or modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency
comments are due 60 days after date of publication in the Federal
Register. Comments should address: (a) Whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002,\6\ we seek specific comment on how we might
``further reduce the information collection burden for small business
concerns with fewer than 25 employees.''
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\6\ Public Law 107-198, see 44 U.S.C. 3506(c)(4).
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Supplemental Initial Regulatory Flexibility Analysis
8. As required by the Regulatory Flexibility Act of 1980 (RFA),\7\
the Commission has prepared a Supplemental Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities of the policies and rules proposed in the FNPRM. The
analysis is found in the attached Appendix B of the FNPRM. We request
written public comment on the analysis. Comments must be filed on or
before July 9, 2008, and reply comments must be filed on or before July
16, 2008 and must have a separate and distinct heading designating them
as responses to the Supplemental IRFA. The Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, will send a
copy of this FNPRM, including the Supplemental IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration.
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\7\ 5 U.S.C. 603.
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A. Need for, and Objectives of, the Proposed Rules
9. The FNPRM contemplates service rules for licensed fixed and
mobile services, including advanced wireless services (AWS), in the
1915-1920 MHz
[[Page 35998]]
and 1995-2000 MHz bands (collectively the ``H Block'') and the 2155-
2175 MHz and 2175-2180 MHz bands (collectively the ``AWS-3 band'').
These service rules include application, licensing, operating and
technical rules for the AWS-3 band and H Block. Consistent with the
Commission's policy objective of affording licensees the flexibility to
deploy new technologies, to implement service innovations, and to
respond to market forces, the FNPRM proposes service rules that provide
AWS-3 and H Block licensees with the flexibility to provide any fixed
or mobile service, including advanced wireless services, which is
consistent with the allocations for this spectrum. The market-oriented
licensing framework for these bands would ensure that this spectrum is
efficiently utilized and will foster the development of new and
innovative technologies and services, as well as encourage the growth
and development of broadband services, ultimately leading to greater
benefits to consumers.
10. The FNPRM seeks to adopt rules that will reduce regulatory
burdens, promote innovative services, and encourage flexible use of
this spectrum. Such an approach opens up economic opportunities to a
variety of spectrum users, which could include small businesses.
11. The FNPRM proposes combining the 2155-2175 MHz band with the
2175-2180 MHz band to form a 25 MHz block of spectrum.
12. In the FNPRM, the Commission also seeks comments on its
proposal to permit both downlink and uplink transmissions throughout
the entire AWS-3 band.
13. In the FNPRM, the Commission also seeks comments on its
proposal to require an AWS-3 licensee to provide free, two-way
broadband Internet service that includes engineered data rates of at
least 768 kps downstream for the average user experience using up to 25
percent of the licensee's wireless network capacity and an ``always
on'' network-based filtering mechanism.
14. In the FNPRM, the Commission seeks comments on its proposal to
require the licensee to provide for open devices and open applications
for its premium service and open devices for its free service.
15. In the FNPRM, the Commission seeks comments on its proposal to
adopt a single nationwide license for the 2155-2180 MHz band.
16. In the FNPRM, the Commission seeks comments on its proposal to
adopt open eligibility for the AWS-3 band.
17. In the FNPRM, the Commission seeks comments on its proposal to
allow licensees to disaggregate, partition, and lease the spectrum.
18. In the FNPRM, the Commission seeks comments on its proposal to
require AWS-3 licensees to provide signal coverage and offer service
to: (1) At least 50 percent of the total population of the nation
within four years of commencement of the license term and (2) at least
95 percent of the total population of the nation at the end of the 10-
year license term.
19. In the FNPRM, the Commission seeks comments on its proposal to
provide initial license term of ten years and subsequent renewal terms
of ten years.
20. In the FNPRM, the Commission seeks comments on its proposal to
provide that mutually exclusive applications should be resolved through
competitive bidding.
21. In the FNPRM, the Commission seeks comments on its proposal to
require AWS-3 mobiles to attenuate out-of-band emissions (OOBE) by 60 +
10log (P) dB outside of the AWS-3 band, and establish a power limit for
AWS-3 mobile devices of 23 dBm/MHz equivalent isotropically radiated
power (EIRP).
22. In the FNPRM, the Commission seeks comments on its proposal to
require an OOBE limit of 43 + 10 log (P) dB for AWS-3 base and fixed
downlink stations and a power limit of 1640 watts peak EIRP in non-
rural areas and 3280 watts peak EIRP in rural areas.
23. In the FNPRM, the Commission seeks comments on its proposal to
license the H Block using exclusive geographic area licensing on a
Basic Trading Area (BTA) basis.
24. In the FNPRM, the Commission seeks comments on its proposal to
adopt open eligibility for the H Block.
25. In the FNPRM, the Commission seeks comments on its proposal to
allow licensees to disaggregate, partition, and lease the spectrum.
26. In the FNPRM, the Commission seeks comments on its proposal to
require an H Block licensee to provide signal coverage and offer
service to: 1) at least 35 percent of the population in each licensed
area within four years and 2) at least 70 percent of the population in
each licensed area at the end of the license term.
27. In the FNPRM, the Commission seeks comments on its proposal to
provide an initial license term of ten years and subsequent renewal
terms of ten years.
28. In the FNPRM, the Commission seeks comments on its proposal to
provide that mutually exclusive applications should be resolved through
competitive bidding.
29. In the FNPRM, the Commission seeks comments on its proposal to
require H Block licensees in the 1915-1920 MHz band to pay a pro rata
share of expenses previously incurred by UTAM Inc. in clearing that
band.
30. In the FNPRM, the Commission seeks comments on its proposal to
adopt both relocation requirements for H Block entrants in the 1995-
2000 MHz band and procedures for cost-sharing among other new entrants
in the Broadcast Auxiliary Service band, including Sprint Nextel and
Mobile Satellite Service entrants.
31. In the FNPRM, the Commission seeks comments on its proposal to
prohibit base and fixed transmission in the 1915-1920 MHz band.
32. In the FNPRM, the Commission seeks comments on its proposal to
require mobiles at 1915-1920 MHz to attenuate OOBE by 90 + 10log P dB
within the PCS band (1930-1990 MHz band), and establish a power limit
for mobiles of 23 dBm/MHz EIRP.
33. In the FNPRM, the Commission seeks comments on its proposal to
prohibit mobile transmission in the 1995-2000 MHz band.
34. In the FNPRM, the Commission seeks comments on its proposal to
adopt an OOBE limit of 43 + 10 log (P) dB for base and fixed stations
at 1995-2000 MHz and a power limit of 1640 watts peak EIRP in non-rural
areas and 3280 watts peak EIRP in rural areas.
35. Our actions today bring us closer to our goals of achieving the
universal availability of broadband access and increasing competition
in the provision of such broadband services both in terms of the types
of services offered and in the technologies utilized to provide those
services. The widespread deployment of broadband will bring new
services to consumers, stimulate economic activity, improve national
productivity, and advance many other objectives--such as improving
education, and advancing economic opportunity for more Americans. By
encouraging the growth and development of broadband, our actions today
also foster the development of facilities-based competition. We achieve
these objectives by taking a market-oriented approach to licensing this
spectrum that provides greater certainty, minimal regulatory
intervention, and leads to greater benefits to consumers.
B. Legal Basis
36. The proposed action is authorized pursuant to Sections 1, 2,
4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332
and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i),
157, 160, 201, 214, 301,
[[Page 35999]]
302, 303, 307, 308, 309, 310, 319, 324, 332, 333.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
37. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\8\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \9\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\10\ A ``small business concern'' is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (SBA).\11\
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\8\ 5 U.S.C. 603(b)(3).
\9\ 5 U.S.C. 601(6).
\10\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\11\ 15 U.S.C. 632.
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38. The Commission has not yet determined how many licenses will be
awarded in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands.
Moreover, the Commission does not yet know how many applicants or
licensees in these bands will be small entities. Though the Commission
does not know for certain which entities are likely to apply for these
frequencies, we note that the H Block and AWS-3 band are comparable to
cellular service and personal communications service.\12\ Accordingly,
we believe the following sorts of regulated entities might ultimately
also be applicants or licensees in this context and thus might be
directly affected by our contemplated rules.
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\12\ See, e.g., AWS-2 Service Rules NPRM; AWS-3 Service Rules
NPRM.
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39. Small Businesses. Nationwide, there are a total of
approximately 22.4 million small businesses, according to SBA data.\13\
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\13\ See SBA, Programs and Services, SBA Pamphlet No. CO-0028,
at page 40 (July 2002).
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40. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.\14\
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\14\ Independent Sector, The New Nonprofit Almanac & Desk
Reference (2002).
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41. Small Governmental Jurisdictions. 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.'' \15\ As of 2002, there were approximately
87,525 governmental jurisdictions in the United States.\16\ This number
includes 38,967 county governments, municipalities, and townships, of
which 37,373 (approximately 95.9%) have populations of fewer than
50,000, and of which 1,594 have populations of 50,000 or more. Thus, we
estimate the number of small governmental jurisdictions overall to be
85,931 or fewer.
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\15\ 5 U.S.C. 601(5).
\16\ U.S. Census Bureau, Statistical Abstract of the United
States: 2006, Section 8, pages 272-273, Tables 415 and 417.
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42. Wireless Telecommunications Carriers (except Satellite). Since
2007, the Census Bureau has placed wireless firms within this new,
broad, economic census category.\17\ Prior to that time, such firms
were within the now-superseded categories of ``Paging'' and ``Cellular
and Other Wireless Telecommunications.'' \18\ Under the present and
prior categories, the SBA has deemed a wireless business to be small if
it has 1,500 or fewer employees.\19\ Because Census Bureau data are not
yet available for the new category, we will estimate small business
prevalence using the prior categories and associated data. For the
category of Paging, data for 2002 show that there were 807 firms that
operated for the entire year.\20\ Of this total, 804 firms had
employment of 999 or fewer employees, and three firms had employment of
1,000 employees or more.\21\ For the category of Cellular and Other
Wireless Telecommunications, data for 2002 show that there were 1,397
firms that operated for the entire year.\22\ Of this total, 1,378 firms
had employment of 999 or fewer employees, and 19 firms had employment
of 1,000 employees or more.\23\ Thus, we estimate that the majority of
wireless firms are small.
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\17\ U.S. Census Bureau, 2007 NAICS Definitions, ``517210
Wireless Telecommunications Categories (Except Satellite)''; http://www.census.gov/naics/2007/def/ND517210.HTM#N517210.
\18\ U.S. Census Bureau, 2002 NAICS Definitions, ``517211
Paging''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.; U.S.
Census Bureau, 2002 NAICS Definitions, ``517212 Cellular and Other
Wireless Telecommunications''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.
\19\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now-
superseded, pre-2007 CFR citations were 13 CFR 121.201, NAICS codes
517211 and 517212 (referring to the 2002 NAICS).
\20\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization)'' Table 5, NAICS code 517211 (issued Nov. 2005).
\21\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
\22\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization)'' Table 5, NAICS code 517212 (issued Nov. 2005).
\23\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
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43. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. As noted above, the SBA has developed a small
business size standard for ``Wireless Telecommunications Carriers
(except Satellite)'' services.\24\ Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.\25\
According to Commission data, 432 carriers reported that they were
engaged in the provision of wireless telephony.\26\ We have estimated
that 221 of these are small under the SBA small business size standard.
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\24\ 13 CFR 121.201, NAICS code 517210.
\25\ 13 CFR 121.201, NAICS code 517210.
\26\ FCC, Wireline Competition Bureau, Industry Analysis and
Technology Division, ``Trends in Telephone Service'' at Table 5.3,
page 5-5 (Feb. 2007). This source uses data that are current as of
October 2005.
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44. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\27\ For Block F, an additional small business size standard for
``very small business'' was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years.\28\ These
small business size standards, in the context of
[[Page 36000]]
broadband PCS auctions, have been approved by the SBA.\29\ No small
businesses within the SBA-approved small business size standards bid
successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 ``small'' and ``very small'' business bidders won
approximately 40 percent of the 1,479 licenses for Blocks D, E, and
F.\30\ On March 23, 1999, the Commission reauctioned 155 C, D, E, and F
Block licenses; there were 113 small business winning bidders.\31\
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\27\ See Amendment of parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852, paras. 57-60 (1996); see also 47 CFR 24.720(b).
\28\ See Amendment of parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852,
para. 60.
\29\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
\30\ FCC News, ``Broadband PCS, D, E and F Block Auction
Closes,'' No. 71744 (released January 14, 1997).
\31\ See ``C, D, E, and F Block Broadband PCS Auction Closes,''
public notice, 14 FCC Rcd 6688 (WTB 1999).
---------------------------------------------------------------------------
45. On January 26, 2001, the Commission completed the auction of
422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning
bidders in this auction, 29 qualified as ``small'' or ``very small''
businesses.\32\ Subsequent events concerning Auction 35, including
judicial and agency determinations, resulted in a total of 163 C and F
Block licenses being available for grant.
---------------------------------------------------------------------------
\32\ See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).
---------------------------------------------------------------------------
46. Cellular Licensees. As noted, the SBA has developed a small
business size standard for wireless firms within the broad economic
census category ``Wireless Telecommunications Carriers (except
Satellite).'' \33\ Under this category, a wireless business is small if
it has 1,500 or fewer employees. Also, as noted, using Commission data
we have estimated that most of these entities are small.
---------------------------------------------------------------------------
\33\ 13 CFR 121.201, NAICS code 517210.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
47. The projected reporting, recordkeeping, and other compliance
requirements resulting from the FNPRM will apply to all entities in the
same manner. The Commission believes that applying the same rules
equally to all entities in this context promotes fairness. The
Commission does not believe that the costs and/or administrative
burdens associated with the rules will unduly burden small entities.
The revisions the Commission adopts should benefit small entities by
giving them more information, more flexibility, and more options for
gaining access to valuable wireless spectrum.
48. Applicants for AWS licenses in the H Block and AWS-3 band will
be required to file license applications using the Commission's
automated Universal Licensing System (ULS). ULS is an online electronic
filing system that also serves as a powerful information tool that
enables potential licensees to research applications, licenses, and
antennae structures. It also keeps the public informed with weekly
public notices, FCC rulemakings, processing utilities, and a
telecommunications glossary. Applicants will be required to submit
short-form auction applications using FCC Form 175.\34\ In addition,
winning bidders must submit long-form license applications through ULS
using Form 601,\35\ FCC Ownership Disclosure Information for the
Wireless Telecommunications Services using FCC Form 602, and other
appropriate forms.\36\
---------------------------------------------------------------------------
\34\ See generally, 47 CFR 1.2105.
\35\ 47 CFR 1.913(a)(1).
\36\ 47 CFR 1.2107.
---------------------------------------------------------------------------
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
49. The RFA requires an agency to describe any significant,
specifically small business, 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 and
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 such small
entities.'' \37\
---------------------------------------------------------------------------
\37\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------
50. Here, we propose service rules that are efficient and also fair
to all entities, including small entities. We also note that,
specifically to assist small businesses, the associated AWS-2 NPRM and
the AWS-3 NPRM propose to establish small business size standards and
associated small business bidding credits for the 1915-1920 MHz, 1995-
2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands.\38\ The AWS-2 NPRM
and the AWS-3 NPRM propose to define a small business as an entity with
average annual gross revenues for the preceding three years not
exceeding $40 million, and a very small business as an entity with
average annual gross revenues for the preceding three years not
exceeding $15 million, if licenses are not nationwide.\39\ The AWS-2
NPRM and the AWS-3 NPRM propose a bidding credit of 15 percent for
small businesses and a bidding credit of 25 percent for very small
businesses under certain circumstances.\40\
---------------------------------------------------------------------------
\38\ See AWS-2 NPRM, 19 FCC Rcd at 19307-10 para 119-124; AWS-3
NPRM, 22 FCC Rcd at 17096-98 para 150-54.
\39\ AWS-2 NPRM, 19 FCC Rcd at 19308-09 para 122; AWS-3 NPRM, 22
FCC Rcd at 17097 para 152.
\40\ AWS-2 NPRM, 19 FCC Rcd at 19309-10 para 123-24; AWS-3 NPRM,
22 FCC Rcd at 17097-98 para 153-54.
---------------------------------------------------------------------------
51. The AWS-2 NPRM and the AWS-3 NPRM also solicit comment on a
number of proposals and alternatives regarding the service rules for
the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz
bands.\41\ The AWS-2 NPRM and the AWS-3 NPRM seek to adopt rules that
will reduce regulatory burdens, promote innovate services and encourage
flexible use of this spectrum. It opens up economic opportunities to a
variety of spectrum users, which could include small businesses. The
AWS-2 NPRM and the AWS-3 NPRM consider various proposals and
alternatives partly because the Commission seeks to minimize, to the
extent possible, the economic impact on small businesses.\42\
---------------------------------------------------------------------------
\41\ See generally AWS-2 NPRM; AWS-3 NPRM.
\42\ AWS-2 NPRM, 19 FCC Rcd at 19325-26 para 26-31; AWS-3 NPRM,
22 FCC Rcd at 17106-08 para 21-25.
---------------------------------------------------------------------------
52. The AWS-2 NPRM and the AWS-3 NPRM invite comment on various
alternative licensing and service rules and on a number of issues
relating to how the Commission should craft service rules for this
spectrum, which could have an impact on small entities. For example,
the Commission seeks comment on the licensing approach for these
frequencies and how the size of spectrum blocks would impact small
entities.\43\ The AWS-2 NPRM and the AWS-3 NPRM seek proposals for a
geographic area approach to geographic areas as opposed to a station-
defined licensing approach.\44\
---------------------------------------------------------------------------
\43\ See AWS-2 NPRM, 19 FCC Rcd at 19272-77 para 21-31; AWS-3
NPRM, 22 FCC Rcd at 17106-08 para 34-38.
\44\ See AWS-2 NPRM, 19 FCC Rcd at 19271-72 para 18-20; AWS-3
NPRM, 22 FCC Rcd at 17050-51 para 31-33.
---------------------------------------------------------------------------
53. The regulatory burdens proposed in the AWS-2 NPRM and the AWS-3
NPRM, such as filing applications on appropriate forms, appear
necessary in order to ensure that the public receives the benefits of
innovative new services, or enhanced existing services, in a prompt and
efficient manner. The Commission will continue to examine
[[Page 36001]]
alternatives in the future with the objectives of eliminating
unnecessary regulations and minimizing any significant economic impact
on small entities. The Commission invites comment on any additional
significant alternatives parties believe should be considered and on
how the approach outlined in the AWS-2 NPRM and the AWS-3 NPRM will
impact small entities, including small businesses and small government
entities.
54. In addition, we seek comment on proposed rules that would
permit licensees, including small entity licensees, to disaggregate,
partition, and lease the spectrum. These options are helpful to small
entities, and we seek comment on these proposals.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
55. None.
Ordering Clauses
56. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302,
303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201,
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this
FNPRM is hereby adopted.
57. Notice is given of the proposed regulatory changes described in
this FNPRM, and that comment is sought on these proposals.
58. It is further ordered that the Supplemental Initial Regulatory
Flexibility Analysis is adopted.
59. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 27, 74, 78 and
101 as follows:
PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES
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.
2. Section 27.1 is revised to read as follows:
Sec. 27.1 Basis and purpose.
This section contains the statutory basis for this part of the
rules and provides the purpose for which this part is issued.
(a) Basis. The rules for miscellaneous wireless communications
services (WCS) in this part are promulgated under the provisions of the
Communications Act of 1934, as amended, that vest authority in the
Federal Communications Commission to regulate radio transmission and to
issue licenses for radio stations.
(b) Purpose. This part states the conditions under which spectrum
is made available and licensed for the provision of wireless
communications services in the following bands.
(1) 2305-2320 MHz and 2345-2360 MHz.
(2) 746-763 MHz, 775-793 MHz, and 805-806 MHz.
(3) 698-746 MHz.
(4) 1390-1392 MHz.
(5) 1392-1395 MHz and 1432-1435 MHz.
(6) 1670-1675 MHz.
(7) [Reserved]
(8) 1710-1755 MHz and 2110-2155 MHz.
(9) 2495-2690 MHz.
(10) 2155-2180 MHz.
(11) 1915-1920 MHz and 1995-2000 MHz.
(c) Scope. The rules in this part apply only to stations authorized
under this part.
3. Section 27.4 is amended by adding the definitions for ``Downlink
Fixed Station '' and ``Uplink Fixed Station'' in alphabetical order to
read as follows:
Sec. 27.4 Terms and definitions.
* * * * *
Downlink Fixed Station. A fixed station employed by a carrier or
licensee to transmit to an end user's fixed station.
* * * * *
Uplink Fixed Station. A fixed station employed by an end user to
transmit to a carrier's or licensee's fixed stations.
* * * * *
4. Section 27.5 is revised by adding paragraphs (j) and (k) to read
as follows:
Sec. 27.5 Frequencies.
* * * * *
(j) 2155-2180 MHz band. The 2155-2180 MHz band is available for
assignment for Advanced Wireless Services.
(k) The paired 1915-1920 MHz and 1995-2000 MHz. The paired 1915-
1920 MHz and 1995-2000 MHz bands are available for assignment for
Advanced Wireless Services. Each winning bidder awarded a license in
the initial AWS auction for spectrum authorizations in the 1915-1920
MHz band must reimburse UTAM, Inc. a pro rata share of the total
expenses incurred by UTAM, Inc. as of the date that the new entrants
gain access to the band. Specifically, AWS licensees in the 1915-1920
MHz band, which constitutes 25% of the 1910-1930 MHz band, shall, on a
pro rata shared basis, reimburse 25% of the total relocation costs
incurred by UTAM, Inc. in clearing the 1910-1930 MHz band of part 101
Fixed Microwave Service (FS) links. We will require a winning bidder of
an AWS H Block license (1915-1920 MHz; 1995-2000 MHz) to reimburse
UTAM, Inc., pursuant to the following formula within 30 days of grant
of their long-form application for the license. The amount owed will be
determined by multiplying the net winning bid for an H Block license
(i.e., an individual BTA) by $12,629,857 and then dividing by the sum
of the net winning bids for all H Block licenses won in the initial
auction. New entrants will be responsible for the actual costs
associated with future relocation activities in their licensed
spectrum, but will be entitled to seek reimbursement from UTAM, Inc.
for the proportion of those band clearing costs that benefit users of
the 1910-1915 MHz and 1920-1930 MHz band. Because the Commission's
rules governing the relocation of FS licensees from this band and the
right to compensation for costs associated with such relocation has
already sunset on April 4, 2005, AWS licensees at 1915-1920 MHz are not
responsible for reimbursing PCS entities for any costs incurred by PCS
entities, other than those incurred by UTAM, Inc., as noted above, for
the relocation of FS links that may otherwise have triggered a cost-
sharing obligation absent the sunset date for those rules.
5. Section 27.6 is amending by paragraphs (a) introductory text and
(h) to read as follows:
Sec. 27.6 Service areas.
(a) WCS and AWS service areas include Basic Trading Areas (as
defined in Sec. 24.202(b) of this chapter), Economic Areas (EAs),
Major Economic Areas (MEAs), Regional Economic Area Groupings (REAGs),
cellular markets comprising Metropolitan Statistical Areas (MSAs) and
Rural Service Areas (RSAs), and a nationwide area. MEAs and REAGs are
defined in the Table immediately following paragraph (a)(1) of this
section. Both MEAs and REAGs are based on the U.S. Department of
Commerce's EAs. See 60 FR 13114 March 10, 1995. In addition, the
[[Page 36002]]
Commission shall separately license Guam and the Northern Mariana
Islands, Puerto Rico and the United States Virgin Islands, American
Samoa, and the Gulf of Mexico, which have been assigned Commission-
created EA numbers 173-176, respectively. The nationwide area is
composed of the contiguous 48 states, Alaska, Hawaii, the Gulf of
Mexico, and the U.S. territories. Maps of the EAs, MEAs, MSAs, RSAs,
and REAGs and the Federal Register notice that established the 172 EAs
are available for public inspection and copying at the Reference
Information Center, Consumer and Governmental Affairs Bureau, Federal
Communications Commission, 445 12th Street, SW., Washington, DC 20554.
* * * * *
(h) Advanced Wireless Services (AWS ). AWS service areas for the
1710-1755 MHz and 2110-2155 MHz, 1915-1920 MHz and 1995-2000 MHz, and
2155-2180 MHz bands are as follows:
(1) Service areas for Block A (1710-1720 MHz and 2110-2120 MHz) are
based on cellular markets comprising Metropolitan Statistical Areas
(MSAs) and Rural Service Areas (RSAs) as defined by Public Notice
Report No. CL-92-40 ``Common Carrier Public Mobile Services
Information, Cellular MSA/RSA Markets and Counties,'' dated January 24,
1992, DA 92-109, 7 FCC Rcd 742 (1992), with the following
modifications:
(i) The service areas of cellular markets that border the U.S.
coastline of the Gulf of Mexico extend 12 nautical miles from the U.S.
Gulf coastline.
(ii) The service area of cellular market 306 that comprises the
water area of the Gulf of Mexico extends from 12 nautical miles off the
U.S. Gulf coast outward into the Gulf.
(2) Service areas for Blocks B (1720-1730 MHz and 2120-2130 MHz)
and C (1730-1735 MHz and 2130-2135 MHz) are based on Economic Areas
(EAs) as defined in paragraph (a) of this section.
(3) Service areas for blocks D (1735-1740 MHz and 2135-2140 MHz), E
(1740-1745 MHz and 2140-2145 MHz) and F (1745-1755 MHz and 2145-2155
MHz) are based on Regional Economic Area Groupings (REAGs) as defined
by paragraph (a) of this section.
(4) The service areas for 1915-1920 and 1995-2000 MHz Service are
based on Basic Trading Areas as defined in paragraph (a) of this
section.
(5) The service area for 2155-2180 MHz is nationwide as defined by
paragraph (a) of this section.
6. Section 27.11 is amended by adding paragraphs (j) and (k) to
read as follows:
Sec. 27.11 Initial authorization.
* * * * *
(j) 2155-2180 MHz band. Authorization for the 2155-2180 MHz band
shall consist of a single 25 megahertz block of spectrum based on the
geographic area specified in Sec. 27.6(h).
(k) The paired 1915-1920 MHz and 1995-2000 MHz bands.
Authorizations for the paired 1915-1920 MHz and 1995-2000 MHz bands
shall consist of two paired channels of 5 megahertz each based on the
geographic areas specified in Sec. 27.6(h).
7. Section 27.13 is amended by adding paragraphs (i) and (j) to
read as follows:
Sec. 27.13 License period.
* * * * *
(i) 2155-2180 MHz band. Initial authorizations for the 2155-2180
MHz band will have a term not to exceed ten years from the date of
initial issuance or renewal.
(j) The paired 1915-1920 MHz and 1995-2000 MHz bands. Initial
authorizations for the paired 1915-1920 MHz and 1995-2000 MHz bands
will have a term not to exceed ten years from the date of initial
issuance or renewal.
8. Section 27.14 is revised to read as follows:
Sec. 27.14 Construction requirements; Criteria for renewal.
(a) AWS and WCS licensees, with the exception of WCS licensees
holding authorizations for Block A in the 698-704 MHz and 728-734 MHz
bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the
722-728 MHz band, Block C, C1, or C2 in the 746-757 MHz and 776-787 MHz
bands, or Block D in the 758-763 MHz and 788-793 MHz bands, and with
the exception of AWS licensees holding authorizations in the 1915-1920
MHz, 1995-2000 MHz, and 2155-2180 MHz bands, must, as a performance
requirement, make a showing of ``substantial service'' in their license
area within the prescribed license term set forth in Sec. 27.13.
``Substantial service'' is defined as service which is sound, favorable
and substantially above a level of mediocre service which just might
minimally warrant renewal. Failure by any licensee to meet this
requirement will result in forfeiture of the license and the licensee
will be ineligible to regain it.
(b) A renewal applicant involved in a comparative renewal
proceeding shall receive a preference, commonly referred to as a
renewal expectancy, which is the most important comparative factor to
be considered in the proceeding, if its past record for the relevant
license period demonstrates that:
(1) The renewal applicant has provided ``substantial'' service
during its past license term; and
(2) The renewal applicant has substantially complied with
applicable FCC rules, policies and the Communications Act of 1934, as
amended.
(c) In order to establish its right to a renewal expectancy, a WCS
renewal applicant involved in a comparative renewal proceeding must
submit a showing explaining why it should receive a renewal expectancy.
At a minimum, this showing must include:
(1) A description of its current service in terms of geographic
coverage and population served;
(2) An explanation of its record of expansion, including a
timetable of new construction to meet changes in demand for service;
(3) A description of its investments in its WCS system; and
(4) Copies of all FCC orders finding the licensee to have violated
the Communications Act or any FCC rule or policy; and a list of any
pending proceedings that relate to any matter described in this
paragraph.
(d) In making its showing of entitlement to a renewal expectancy, a
renewal applicant may claim credit for any system modification
applications that were pending on the date it filed its renewal
application. Such credit will not be allowed if the modification
application is dismissed or denied.
(e) Comparative renewal proceedings do not apply to AWS licensees
holding authorizations in the 1915-1920 MHz, 1995-2000 MHz, and 2155-
2180 MHz bands or to WCS licensees holding authorizations for Block A
in the 698-704 MHz, 728-734 MHz bands, Block B in the 704-710 MHz and
734-740 MHz bands, Block C in the 710-716 MHz and 740-746 MHz bands,
Block D in the 716-722 MHz band, Block E in the 722-728 MHz band, Block
C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in
the 758-763 MHz and 788-793 MHz bands. Each of these licensees must
file a renewal application in accordance with the provisions set forth
in Sec. 1.949 of this chapter, and must make a showing of substantial
service, independent of its performance requirements, as a condition
for renewal at the end of each license term.
(f) Comparative renewal proceedings do not apply to WCS licensees
holding authorizations for the 698-746 MHz, 747-762 MHz, and 777-792
MHz bands. These licensees must file a renewal application in
accordance with the
[[Page 36003]]
provisions set forth in Sec. 1.949 of this chapter.
(g) WCS licensees holding EA authorizations for Block A in the 698-
704 MHz and 728-734 MHz bands, cellular market authorizations for Block
B in the 704-710 MHz and 734-740 MHz bands, or EA authorizations for
Block E in the 722-728 MHz band, if the results of the first auction in
which licenses for such authorizations are offered satisfy the reserve
price for the applicable block, shall provide signal coverage and offer
service over at least 35 percent of the geographic area of each of
their license authorizations no later than February 17, 2013 (or within
four years of initial license grant if the initial authorization in a
market is granted after February 17, 2009), and shall provide such
service over at least 70 percent of the geographic area of each of
these authorizations by the end of the license term. In applying these
geographic benchmarks, licensees are not required to include land owned
or administered by government as a part of the relevant service area.
Licensees may count covered government land for purposes of meeting
their geographic construction benchmark, but are required to add the
covered government land to the total geographic area used for
measurement purposes. Licensees are required to include those populated
lands held by tribal governments and those held by the Federal
Government in trust or for the benefit of a recognized tribe.
(1) If an EA or CMA licensee holding an authorization in these
particular blocks fails to provide signal coverage and offer service
over at least 35 percent of the geographic area of its license
authorization by no later than February 17, 2013 (or within four years
of initial license grant, if the initial authorization in a market is
granted after February 17, 2009), the term of that license
authorization will be reduced by two years and such licensee may be
subject to enforcement action, including forfeitures. In addition, an
EA or CMA licensee that provides signal coverage and offers service at
a level that is below this interim benchmark may lose authority to
operate in part of the remaining unserved areas of the license.
(2) If any such EA or CMA licensee fails to provide signal coverage
and offer service to at least 70 percent of the geographic area of its
license authorization by the end of the license term, that licensee's
authorization will terminate automatically without Commission action
for those geographic portions of its license in which the licensee is
not providing service, and those unserved areas will become available
for reassignment by the Commission. Such licensee may also be subject
to enforcement action, including forfeitures. In addition, an EA or CMA
licensee that provides signal coverage and offers service at a level
that is below this end-of-term benchmark may be subject to license
termination. In the event that a licensee's authority to operate in a
license area terminates automatically without Commission action, such
areas will become available for reassignment pursuant to the procedures
in paragraph (j) of this section.
(3) For licenses under paragraph (g) of this section, the
geographic service area to be made available for reassignment must
include a contiguous area of at least 130 square kilometers (50 square
miles), and areas smaller than a contiguous area of at least 130 square
kilometers (50 square miles) will not be deemed unserved.
(h) WCS licensees holding REAG authorizations for Block C in the
746-757 MHz and 776-787 MHz bands or REAG authorizations for Block C2
in the 752-757 MHz and 782-787 MHz bands shall provide signal coverage
and offer service over at least 40 percent of the population in each EA
comprising the REAG license area no later than February 17, 2013 (or
within four years of initial license grant, if the initial
authorization in a market is granted after February 17, 2009), and
shall provide such service over at least 75 percent of the population
of each of these EAs by the end of the license term. For purposes of
compliance with this requirement, licensees should determine population
based on the most recently available U.S. Census Data.
(1) If a licensee holding a Block C authorization fails to provide
signal coverage and offer service over at least 40 percent of the
population in each EA comprising the REAG license area by no later than
February 17, 2013 (or within four years of initial license grant if the
initial authorization in a market is granted after February 17, 2009),
the term of the license authorization will be reduced by two years and
such licensee may be subject to enforcement action, including
forfeitures. In addition, a licensee that provides signal coverage and
offers service at a level that is below this interim benchmark may lose
authority to operate in part of the remaining unserved areas of the
license.
(2) If a licensee holding a Block C authorization fails to provide
signal coverage and offer service over at least 75 percent of the
population in any EA comprising the REAG license area by the end of the
license term, for each such EA that licensee's authorization will
terminate automatically without Commission action for those geographic
portions of its license in which the licensee is not providing service.
Such licensee may also be subject to enforcement action, including
forfeitures. In the event that a licensee's authority to operate in a
license area terminates automatically without Commission action, such
areas will become available for reassignment pursuant to the procedures
in paragraph (j) of this section. In addition, a REAG licensee that
provides signal coverage and offers service at a level that is below
this end-of-term benchmark within any EA may be subject to license
termination within that EA.
(3) For licenses under paragraph (h) of this section, the
geographic service area to be made available for reassignment must
include a contiguous area of at least 130 square kilometers (50 square
miles), and areas smaller than a contiguous area of at least 130 square
kilometers (50 square miles) will not be deemed unserved.
(i) WCS licensees holding EA authorizations for Block A in the 698-
704 MHz and 728-734 MHz bands, cellular market authorizations for Block
B in the 704-710 MHz and 734-740 MHz bands, or EA authorizations for
Block E in the 722-728 MHz band, if the results of the first auction in
which licenses for such authorizations in Blocks A, B, and E are
offered do not satisfy the reserve price for the applicable block, as
well as EA authorizations for Block C1 in the 746-752 MHz and 776-782
MHz bands, are subject to the following:
(1) If a licensee holding a cellular market area or EA
authorization subject to this paragraph (i) fails to provide signal
coverage and offer service over at least 40 percent of the population
in its license area by no later than February 17, 2013 (or within four
years of initial license grant, if the initial authorization in a
market is granted after February 17, 2009), the term of that license
authorization will be reduced by two years and such licensee may be
subject to enforcement action, including forfeitures. In addition, such
licensee that provides signal coverage and offers service at a level
that is below this interim benchmark may lose authority to operate in
part of the remaining unserved areas of the license. For purposes of
compliance with this requirement, licensees should determine population
based on the most recently available U.S. Census Data.
(2) If a licensee holding a cellular market area or EA
authorization subject to this paragraph (i) fails to provide signal
coverage and offer service over at
[[Page 36004]]
least 75 percent of the population in its license area by the end of
the license term, that licensee's authorization will terminate
automatically without Commission action for those geographic portions
of its license in which the licensee is not providing service, and
those unserved areas will become available for reassignment by the
Commission. Such licensee may also be subject to enforcement action,
including forfeitures. In the event that a licensee's authority to
operate in a license area terminates automatically without Commission
action, such areas will become available for reassignment pursuant to
the procedures in paragraph (j) of this section. In addition, such a
licensee that provides signal coverage and offers service at a level
that is below this end-of-term benchmark may be subject to license
termination. For purposes of compliance with this requirement,
licensees should determine population based on the most recently
available U.S. Census Data.
(3) For licenses under this paragraph (i), the geographic service
area to be made available for reassignment must include a contiguous
area of at least 130 square kilometers (50 square miles), and areas
smaller than a contiguous area of at least 130 square kilometers (50
square miles) will not be deemed unserved.
(j) In the event that a licensee's authority to operate in a
license area terminates automatically under paragraphs (g), (h), (i),
(p) or (q) of this section, such areas will become available for
reassignment pursuant to the following procedures:
(1) The Wireless Telecommunications Bureau is delegated authority
to announce by public notice that these license areas will be made
available and establish a 30-day window during which third parties may
file license applications to serve these areas. During this 30-day
period, licensees that had their authority to operate terminate
automatically for unserved areas may not file applications to provide
service to these areas. Applications filed by third parties that
propose areas overlapping with other applications will be deemed
mutually exclusive, and will be resolved through an auction. The
Wireless Telecommunications Bureau, by public notice, may specify a
limited period before the filing of short-form applications (FCC Form
175) during which applicants may enter into a settlement to resolve
their mutual exclusivity, subject to the provisions of Sec. 1.935 of
this chapter.
(2) Following this 30-day period, the original licensee and third
parties can file license applications for remaining unserved areas
where licenses have not been issued or for which there are no pending
applications. If the original licensee or a third party files an
application, that application will be placed on public notice for 30
days. If no mutually exclusive application is filed, the application
will be granted, provided that a grant is found to be in the public
interest. If a mutually exclusive application is filed, it will be
resolved through an auction. The Wireless Telecommunications Bureau, by
public notice, may specify a limited period before the filing of short-
form applications (FCC Form 175) during which applicants may enter into
a settlement to resolve their mutual exclusivity, subject to the
provisions of Sec. 1.935 of this chapter.
(3) The licensee will have one year from the date the new license
is issued to complete its construction and provide signal coverage and
offer service over 100 percent of the geographic area of the new
license area. If the licensee fails to meet this construction
requirement, its license will automatically terminate without
Commission action and it will not be eligible to apply to provide
service to this area at any future date.
(k) AWS and WCS licensees holding authorizations in the spectrum
blocks enumerated in paragraphs (g), (h), (i), (p), or (q) of this
section, including any licensee that obtained its license pursuant to
the procedures set forth in paragraph (j) of this section, shall
demonstrate compliance with performance requirements by filing a
construction notification with the Commission, within 15 days of the
expiration of the applicable benchmark, in accordance with the
provisions set forth in Sec. 1.946(d) of this chapter. The licensee
must certify whether it has met the applicable performance
requirements. The licensee must file a description and certification of
the areas for which it is providing service. The construction
notifications must include electronic coverage maps, supporting
technical documentation and any other information as the Wireless
Telecommunications Bureau may prescribe by public notice.
(l) AWS and WCS licensees holding authorizations in the spectrum
blocks enumerated in paragraphs (g), (h), (i), (p), or (q) of this
section, excluding any licensee that obtained its license pursuant to
the procedures set forth in paragraph (j) of this section, shall file
reports with the Commission that provide the Commission, at a minimum,
with information concerning the status of their efforts to meet the
performance requirements applicable to their authorizations in such
spectrum blocks and the manner in which that spectrum is being
utilized. The information to be reported will include the date the
license term commenced, a description of the steps the licensee has
taken toward meeting its construction obligations in a timely manner,
including the technology or technologies and service(s) being provided,
and the areas within the license area in which those services are
available.
(1) Each WCS licensee holding an authorization in the spectrum
blocks enumerated in paragraphs (g), (h), or (i) of this section shall
file its first report with the Commission no later than February 17,
2011 and no sooner than 30 days prior to this date. Each licensee that
meets its interim benchmarks shall file a second report with the
Commission no later than February 17, 2016 and no sooner than 30 days
prior to this date. Each licensee that does not meet its interim
benchmark shall file this second report no later than on February 17,
2015 and no sooner than 30 days prior to this date.
(2) Each AWS licensee holding an authorization in the spectrum
blocks enumerated in paragraphs (p) or (q) of this section shall file
its first report with the Commission no later than two years from the
date on which the original license was issued and no sooner than 30
days prior to this date. Each licensee that meets its interim
benchmarks shall file a second report with the Commission no later than
seven years from the date on which the original license was issued and
no sooner than 30 days prior to this date. Each licensee that does not
meet its interim benchmark shall file this second report no later than
six years from the date on which the original license was issued and no
sooner than 30 days prior to this date.
(m) The WCS licensee holding the authorization for the D Block in
the 758-763 MHz and 788-793 MHz bands (the Upper 700 MHz D Block
licensee) shall comply with the following construction requirements.
(1) The Upper 700 MHz D Block licensee shall provide a signal
coverage and offer service over at least 75 percent of the population
of the nationwide Upper 700 MHz D Block license area within four years
from February 17, 2009, 95 percent of the population of the nationwide
license area within seven years, and 99.3 percent of the population of
the nationwide license area within ten years.
(2) The Upper 700 MHz D Block licensee may modify, to a limited
degree, its population-based construction benchmarks with the agreement
of the Public Safety
[[Page 36005]]
Broadband Licensee and the prior approval of the Commission, where such
a modification would better serve to meet commercial and public safety
needs.
(3) The Upper 700 MHz D Block licensee shall meet the population
benchmarks based on a performance schedule specified in the Network
Sharing Agreement, taking into account performance pursuant to Sec.
27.1327 as appropriate under that rule, and using the most recently
available U.S. Census Data. The network and signal levels employed to
meet these benchmarks must be adequate for public safety use, as
defined in the Network Sharing Agreement, and the services made
available must include those appropriate for public safety entities
that operate in those areas. The schedule shall include coverage for
major highways and interstates, as well as such additional areas that
are necessary to provide coverage for all incorporated communities with
a population in excess of 3,000, unless the Public Safety Broadband
Licensee and the Upper 700 MHz D Block licensee jointly determine, in
consultation with a relevant community, that such additional coverage
will not provide significant public benefit.
(4) The Upper 700 MHz D Block licensee shall demonstrate compliance
with performance requirements by filing a construction notification
with the Commission within 15 days of the expiration of the applicable
benchmark, in accordance with the provisions set forth in Sec.
1.946(d) of this chapter. The licensee must certify whether it has met
the applicable performance requirement and must file a description and
certification of the areas for which it is providing service. The
construction notifications must include the following:
(i) Certifications of the areas that were scheduled for
construction and service by that date under the Network Sharing
Agreement for which it is providing service, the type of service it is
providing for each area, and the type of technology it is utilizing to
provide this service.
(ii) Electronic coverage maps and supporting technical
documentation providing the assumptions used by the licensee to create
the coverage maps, including the propagation model and the signal
strength necessary to provide service.
(n) At the end of its license term, the Upper 700 MHz D Block
licensee must, in order to renew its license, make a showing of its
success in meeting the material requirements set forth in the Network
Sharing Agreement as well as all other license conditions, including
the performance benchmark requirements set forth in this section.
(p) AWS licensees holding authorizations in the 1915-1920 MHz and
1995-2000 MHz shall provide signal coverage and offer service to at
least 35 percent of the population in each licensed area within four
years of the date on which the original license was issued and at least
70 percent of the population in each licensed area at the end of the
license term.
(1) If any AWS licensee holding an authorization in the 1915-1920
MHz and 1995-2000 MHz bands fails to provide signal coverage and offer
service to at least 35 percent of the population in the licensed area
within four years of the date on which the original license was issued,
the term of that license authorization will be reduced by two years and
such licensee may be subject to enforcement action, including
forfeitures. In addition, the licensee may lose authority to operate in
part of the remaining unserved areas of the license.
(2) If any AWS licensee holding an authorization in the 1915-1920
MHz and 1995-2000 MHz fails to provide signal coverage and offer
service to at least 70 percent of the population in each licensed area
at the end of the license term, that licensee's authorization will
terminate automatically without Commission action for those geographic
portions of its license in which the licensee is not providing service,
and those unserved areas will become available for reassignment by the
Commission. Such licensee may also be subject to enforcement action,
including forfeitures. In addition, a licensee that provides signal
coverage and offers service at a level that is below the end-of-term
benchmark may be subject to license termination. In the event that a
licensee's authority to operate in a license area terminates
automatically without Commission action, such areas will become
available for reassignment pursuant to the procedures in paragraph (j)
of this section.
(3) For licenses under paragraphs (g), (h), and (i), the geographic
service area to be made available to new entrants must include a
contiguous area of at least 130 square kilometers (50 square miles),
and areas smaller than a contiguous area of at least 130 square
kilometers (50 square miles) will not be deemed unserved.
(4) To demonstrate compliance with these performance requirements,
licensees shall use the most recently available U.S. Census Data at the
time of measurement and shall base their measurements of population
served on areas no larger than the Census Tract level. The population
within a specific Census Tract (or other acceptable identifier) will
only be deemed served by the licensee if it provides signal coverage to
and offers service within the specific Census Tract (or other
acceptable identifier). To the extent the Census Tract (or other
acceptable identifier) extends beyond the boundaries of a license area,
a licensee with authorizations for such areas may only include the
population within the Census Tract (or other acceptable identifier)
towards meeting the performance requirement of a single, individual
license.
(q) Any AWS licensee holding an authorization in the 2155-2180 MHz
band shall provide signal coverage and offer service to at least 50
percent of the total U.S. population within four years of the date on
which the original license was issued and at least 95 percent of the
total U.S. population at the end of the license term. If any licensee
in this band elects not to meet its performance requirements based on
the percent of the U.S. population served, it shall provide signal
coverage and offer service to at least 35 percent of the population in
each Cellular Market Area (CMA) or Economic Area (EA) in its licensed
area within four years and at least 70 percent of the population in
each CMA or EA in its licensed area at the end of the license term.
(1) If any AWS licensee holding an authorization in the 2155-2180
MHz band fails to establish that it meets the applicable performance
requirement within four years of the date on which the original license
was issued, the term of that license authorization will be reduced by
two years and such licensee may be subject to enforcement action,
including forfeitures. In addition, the licensee may lose authority to
operate in part of the remaining unserved areas of the license.
(2) If any AWS licensee holding an authorization in the 2155-2180
MHz band fails to establish that it meets the applicable performance
requirement at the end of the license term, that licensee's
authorization will terminate automatically without Commission action
for those geographic portions of its license in which the licensee is
not providing service, and those unserved areas will become available
for reassignment by the Commission. Such licensee may also be subject
to enforcement action, including forfeitures. In addition, a licensee
that provides signal coverage and offers service at a level that is
below the end-of-term benchmark may be subject to
[[Page 36006]]
license termination. In the event that a licensee's authority to
operate in a license area terminates automatically without Commission
action, such areas will become available for reassignment pursuant to
the procedures in paragraph (j) of this section.
9. Section 27.15 is revised to read as follows:
Sec. 27.15 Geographic partitioning and spectrum disaggregation.
(a) Eligibility. (1) Parties seeking approval for partitioning and
disaggregation shall request from the Commission an authorization for
partial assignment of a license pursuant to Sec. 1.948 of this
chapter.
(2) AWS and WCS licensees may apply to partition their licensed
geographic service area or disaggregate their licensed spectrum at any
time following the grant of their licenses.
(b) Technical Standards: (1) Partitioning. In the case of
partitioning, applicants and licensees must file FCC Form 603 pursuant
to Sec. 1.948 of this chapter and list the partitioned service area on
a schedule to the application. The geographic coordinates must be
specified in degrees, minutes, and seconds to the nearest second of
latitude and longitude and must be based upon the 1983 North American
Datum (NAD83).
(2) Disaggregation. Spectrum may be disaggregated in any amount.
(3) Combined partitioning and disaggregation. The Commission will
consider requests for partial assignment of licenses that propose
combinations of partitioning and disaggregation.
(4) Signal levels. For purposes of partitioning and disaggregation,
part 27 systems must be designed so as not to exceed the signal level
specified for the particular spectrum block in Sec. 27.55 at the
licensee's service area boundary, unless the affected adjacent service
area licensees have agreed to a different signal level.
(c) License term. The license term for a partitioned license area
and for disaggregated spectrum shall be the remainder of the original
licensee's license term as provided for in Sec. 27.13.
(d) Compliance with construction requirements: (1) Partitioning.
(i) Except for AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and
2155-2180 MHz bands and WCS licensees holding authorizations for Block
A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz
and 734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1,
or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-
763 MHz and 788-793 MHz bands, the following rules apply to WCS and AWS
licensees holding authorizations for purposes of implementing the
construction requirements set forth in Sec. 27.14. Parties to
partitioning agreements have two options for satisfying the
construction requirements set forth in Sec. 27.14. Under the first
option, the partitioner and partitionee each certifies that it will
independently satisfy the substantial service requirement for its
respective partitioned area. If a licensee subsequently fails to meet
its substantial service requirement, its license will be subject to
automatic cancellation without further Commission action. Under the
section option, the partitioner certifies that it has met or will meet
the substantial service requirement for the entire, pre-partitioned
geographic service area. If the partitioner subsequently fails to meet
its substantial service requirement, only its license will be subject
to automatic cancellation without further Commission action.
(ii) For AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and
2155-2180 MHz bands and WCS licensees holding authorizations for Block
A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz
and 734-740 MHz bands, Block E in the 722-728 MHz band, or Blocks C,
C1, and C2 in the 746-757 MHz and 776-787 MHz bands, the following
rules apply for purposes of implementing the construction requirements
set forth in Sec. 27.14. Parties to partitioning agreements have two
options for satisfying the construction requirements set forth in Sec.
27.14. Under the first option, the partitioner and partitionee each
certifies that they will collectively share responsibility for meeting
the construction requirement for the entire pre-partition geographic
license area. If the partitioner and partitionee collectively fail to
meet the construction requirement, then both the partitioner and
partitionee will be subject to the consequences enumerated in Sec.
27.14(g) and (h) for this failure. Under the second option, the
partitioner and partitionee each certifies that it will independently
meet the construction requirement for its respective partitioned
license area. If the partitioner or partitionee fails to meet the
construction requirement for its respective partitioned license area,
then the consequences for this failure shall be those enumerated in
Sec. 27.14(g) and (h).
(2) Disaggregation. (i) Except for AWS licensees in the 1915-1920
MHz, 1995-2000 MHz, and 2155-2180 MHz bands and WCS licensees holding
authorizations for Block A in the 698-704 MHz and 728-734 MHz bands,
Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-
728 MHz band, Blocks C, C1, or C2 in the 746-757 MHz and 776-787 MHz
bands, or Block D in the 758-763 MHz and 788-793 MHz bands, the
following rules apply to WCS and AWS licensees holding authorizations
for purposes of implementing the construction requirements set forth in
Sec. 27.14. Parties to disaggregation agreements have two options for
satisfying the construction requirements set forth in Sec. 27.14.
Under the first option, the disaggregator and disaggregatee each
certifies that it will share responsibility for meeting the substantial
service requirement for the geographic service area. If the parties
choose this option and either party subsequently fails to satisfy its
substantial service responsibility, both parties' licenses will be
subject to forfeiture without further Commission action. Under the
second option, both parties certify either that the disaggregator or
the disaggregatee will meet the substantial service requirement for the
geographic service area. If the parties choose this option, and the
party responsible subsequently fails to meet the substantial service
requirement, only that party's license will be subject to forfeiture
without further Commission action.
(ii) For AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and
2155-2180 MHz bands and WCS licensees holding authorizations for Block
A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz
and 734-740 MHz bands, Block E in the 722-728 MHz band, and Blocks C,
C1, or C2 in the 746-757 MHz and 776-787 MHz bands, the following rules
apply for purposes of implementing the construction requirements set
forth in Sec. 27.14. If either the disaggregator or the disaggregatee
meets the construction requirements set forth in Sec. 27.14, then
these requirements will be considered to be satisfied for both parties.
If neither the disaggregator nor the disaggregatee meets the
construction requirements, then both parties will be subject to the
consequences enumerated in Sec. 27.14(g) and (h) for this failure.
10. Section 27.16 is revised to read as follows:
Sec. 27.16. Network access requirements for Block C in the 746-757
and 776-787 MHz bands and for the 2155-2180 MHz band (the AWS-3 Band).
(a) Applicability. This section shall apply only to the
authorizations for Block C in the 746-757 and 776-787 MHz bands (700 C
Block) assigned as a result of Auction 73 and to the 2155-2180 MHz band
(AWS-3 Band).
[[Page 36007]]
(b) Use of devices and applications. Licensees offering service on
the 700 C Block and the licensee offering premium or paid services on
the AWS-3 Band subject to this section shall not deny, limit, or
restrict the ability of their customers to use the devices and
applications of their choice on the licensee's network, and the
licensee providing free broadband service on the AWS-3 band subject to
this section shall not deny, limit, or restrict the ability of their
customers to use the devices of their choice on the licensee's network,
except:
(1) Insofar as such use would not be compliant with published
technical standards reasonably necessary for the management or
protection of the licensee's network,
(2) Licensees or lessees providing free broadband service required
under Sec. 27.1192 of this part shall not deny, limit, or restrict the
ability of users to use the devices of their choice on the licensee's
or lessee's network, or
(3) As required to comply with statute or applicable government
regulation.
(c) Technical standards. For purposes of paragraph (b)(1) of this
section:
(1) Standards shall include technical requirements reasonably
necessary for third parties to access a licensee's network via devices
or applications without causing objectionable interference to other
spectrum users or jeopardizing network security. The potential for
excessive bandwidth demand alone shall not constitute grounds for
denying, limiting or restricting access to the network, except as
provided in Sec. 27.1192(a)(2) part for the AWS-3 Band.
(2) To the extent a licensee relies on standards established by an
independent standards-setting body which is open to participation by
representatives of service providers, equipment manufacturers,
application developers, consumer organizations, and other interested
parties, the standards will carry a presumption of reasonableness.
(3) A licensee shall publish its technical standards, which shall
be non-proprietary, no later than the time at which it makes such
standards available to any preferred vendors, so that the standards are
readily available to customers, equipment manufacturers, application
developers, and other parties interested in using or developing
products for use on a licensee's networks.
(d) Access requests. (1) Licensees shall establish and publish
clear and reasonable procedures for parties to seek approval to use
devices or applications on the licensees' networks. A licensee must
also provide to potential customers notice of the customers' rights to
request the attachment of a device or application to the licensee's
network, and notice of the licensee's process for customers to make
such requests, including the relevant network criteria.
(2) If a licensee determines that a request for access would
violate its technical standards or regulatory requirements, the
licensee shall expeditiously provide a written response to the
requester specifying the basis for denying access and providing an
opportunity for the requester to modify its request to satisfy the
licensee's concerns.
11. Section 27.50(d) is revised to read as follows:
Sec. 27.50 Power and antenna height limits.
* * * * *
(d) The following power and antenna height requirements apply to
stations transmitting in the 1710-1755 MHz, 1915-1920 MHz, 1995-2000
MHz, and 2110-2180 MHz bands:
(1) The power of each fixed or base station transmitting in the
1995-2000 MHz and 2110-2155 MHz bands and each base or downlink fixed
station transmitting in the 2155-2180 MHz band, and located in any
county with population density of 100 or fewer persons per square mile,
based upon the most recently available population statistics from the
Bureau of the Census, is limited to:
(i) An equivalent isotropically radiated power (EIRP) of 3280 watts
when transmitting with an emission bandwidth of 1 MHz or less;
(ii) An EIRP of 3280 watts/MHz when transmitting with an emission
bandwidth greater than 1 MHz.
(2) The power of each fixed or base station transmitting in the
1995-2000 MHz and 2110-2155 MHz band and each base or downlink fixed
station transmitting in the 2155-2180 MHz band, and located in any
geographic location other than that described in paragraph (d)(1) of
this section is limited to:
(i) An equivalent isotropically radiated power (EIRP) of 1640 watts
when transmitting with an emission bandwidth of 1 MHz or less;
(ii) An EIRP of 1640 watts/MHz when transmitting with an emission
bandwidth greater than 1 MHz.
(3) A licensee operating a base or fixed station in the 2110-2155
MHz band or a base or downlink fixed station in the 2155-2180 MHz band
and utilizing a power greater than 1640 watts EIRP and greater than
1640 watts/MHz EIRP must coordinate such operations in advance with the
following licensees authorized to operate within 120 kilometers (75
miles) of the base or fixed station operating in this band: all
Government and non-Government satellite entities in the 2025-2110 MHz
band; all Broadband Radio Service (BRS) licensees authorized under Part
27 in the 2155-2160 MHz band; and all advanced wireless services (AWS)
licensees authorized to operate on adjacent frequency blocks in the
2110-2180 MHz band.
(4) Fixed, mobile, and portable (hand-held) stations operating in
the 1710-1755 MHz band are limited to 1 watt (W) EIRP. Fixed stations
operating in the 1710-1755 MHz band are limited to a maximum antenna
height of 10 meters above ground. Uplink fixed stations operating in
the 1915-1920 MHz and 2155-2180 MHz bands are limited to 2 watts/MHz
(W/MHz) peak EIRP. Mobile and portable stations operating in the 1915-
1920 MHz and 2155-2180 MHz bands are limited to 200 milliwatts/MHz (mW/
MHz) peak EIRP. Mobile and portable stations operating in the 1710-1755
MHz, 1915-1920 MHz, and 2155-2180 MHz bands must employ a means for
limiting power to the minimum necessary for successful communications.
(5) Equipment employed must be authorized in accordance with the
provisions of Sec. 27.51. Except for mobile, portable, and uplink fixed
stations operating in the 1915-1920 MHz and 2155-2180 MHz bands, power
measurements for transmissions by stations authorized under this
section may be made either in accordance with a Commission-approved
average power technique or in compliance with paragraph (d)(6) of this
section. In measuring transmissions in this band using an average power
technique, the peak-to-average ratio (PAR) of the transmission may not
exceed 13 dB.
(6) Peak transmit power must be measured over any interval of
continuous transmission using instrumentation calibrated in terms of an
RMS-equivalent voltage. The measurement results shall be properly
adjusted for any instrument limitations, such as detector response
times, limited resolution bandwidth capability when compared to the
emission bandwidth, sensitivity, etc., so as to obtain a true peak
measurement for the emission in question over the full bandwidth of the
channel.
* * * * *
12. In Sec. 27.53 paragraph (h) is revised to read as follows:
[[Page 36008]]
Sec. 27.53 Emission limits.
* * * * *
(h) For operations in the 1710-1755 MHz, 1915-1920 MHz, 1995-2000
MHz, and 2110-2180 MHz bands, the power of any emission outside a
licensee's frequency block shall be attenuated in accordance with the
following:
(1) For all operations in the 1710-1755 MHz, 1995-2000 MHz, and
2110-2155 MHz bands and for all base and downlink fixed station
operations in the 2155-2180 MHz band, the power of any emission outside
a licensee's frequency block shall be attenuated below the transmitter
power (P) by at least 43 + 10 log10 (P) dB;
(2) For all mobile, portable, and uplink fixed station operations
in the 2155-2180 MHz band, the power of any emission outside a
licensee's frequency block shall be attenuated below the transmitter
power (P) by at least 60 + 10 log10 (P) dB;
(3) For all operations in the 1915-1920 MHz band, the power of any
emission outside a licensee's frequency block shall be attenuated below
the transmitter power (P) by at least 43 + 10 log10 (P) dB and the
power of any emission on frequencies above 1930 MHz shall be attenuated
below the transmitter power (P) by at least 90 + 10 log10 (P) dB;
(4) Compliance with these provisions are based on the use of
measurement instrumentation employing a resolution bandwidth of 1
megahertz or greater. However, in the 1 megahertz bands immediately
outside and adjacent to the licensee's frequency block, a resolution
bandwidth of at least one percent of the emission bandwidth of the
fundamental emission of the transmitter may be employed. The emission
bandwidth is defined as the width of the signal between two points, one
below the carrier center frequency and one above the carrier center
frequency, outside of which all emissions are attenuated at least 26 dB
below the transmitter power;
(5) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the licensee's frequency block
edges, both upper and lower, as the design permits;
(6) The measurements of emission power can be expressed in peak or
average values, provided they are expressed in the same parameters as
the transmitter power.
* * * * *
13. Section 27.55 is revised to read as follows:
Sec. 27.55 Power strength limits.
(a) Field strength limits. For the following bands, the predicted
or measured median field strength at any location on the geographical
border of a licensee's service area shall not exceed the value
specified unless the adjacent affected service area licensee(s)
agree(s) to a different field strength. This value applies to both the
initially offered service areas and to partitioned service areas.
(1) 1995-2000, 2110-2180, 2305-2320 and 2345-2360 MHz bands: 47
dB[mu]V/m.
(2) 698-758 and 775-787 MHz bands: 40 dB[mu]V/m.
(3) The paired 1392-1395 MHz and 1432-1435 MHz bands and the
unpaired 1390-1392 MHz band (1.4 GHz band): 47 dB[mu]V/m.
(4) BRS and EBS: The predicted or measured median field strength at
any location on the geographical border of a licensee's service area
shall not exceed the value specified unless the adjacent affected
service area licensee(s) agree(s) to a different field strength. This
value applies to both the initially offered services areas and to
partitioned services areas. Licensees may exceed this signal level
where there is no affected licensee that is constructed and providing
service. Once the affected licensee is providing service, the original
licensee will be required to take whatever steps necessary to comply
with the applicable power level at its GSA boundary, absent consent
from the affected licensee.
(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/m2 , 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.
(b) Power flux density limit for stations operating in the 698-746
MHz bands. For base and fixed stations operating in the 698-746 MHz
band in accordance with the provisions of Sec. 27.50(c)(6), the power
flux density that would be produced by such stations through a
combination of antenna height and vertical gain pattern must not exceed
3000 microwatts per square meter on the ground over the area extending
to 1 km from the base of the antenna mounting structure.
(c) Power flux density limit for stations operating in the 746-757
MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands. For base and
fixed stations operating in the 746-757 MHz, 758-763 MHz, 776-787 MHz,
and 788-793 MHz bands in accordance with the provisions of Sec.
27.50(b)(6), the power flux density that would be produced by such
stations through a combination of antenna height and vertical gain
pattern must not exceed 3000 microwatts per square meter on the ground
over the area extending to 1 km from the base of the antenna mounting
structure.
14. Section 27.1191 and an undesignated center heading is added to
read as follows:
Special Provisions Governing the 2155-2180 MHz Band
Sec. 27.1191 Free wireless broadband service requirement in the 2155-
2180 MHz band.
(a) Applicability. This section shall apply only to an
authorization in the 2155-2180 MHz ``AWS-3'' band.
(b) Provision of free broadband service. A licensee (including
lessees) offering any service on spectrum subject to this section must
utilize up to twenty-five percent of its AWS-3 wireless network
capacity to provide free two-way wireless broadband Internet service
(``free broadband service'') at a minimum engineered data rate of 768
kbps downstream per user.
(1) To the extent that a licensee meets all demand for the free
broadband service and is providing such service at a minimum engineered
data rate of 768 kbps downstream per user, such licensee can utilize
more than seventy-five percent of its wireless network capacity for any
other service authorized to operate in this band.
(2) On a per base-station or per market basis, a 2155-2180 MHz
licensee will not be required to maintain the minimum data rate when
and where meeting additional demand for the free broadband service
would require more than twenty-five percent of wireless network
capacity. Once demand reaches
[[Page 36009]]
twenty-five percent of wireless network capacity, a 2155-2180 MHz
licensee has the discretion to manage any additional demand for free
service using any lawful network management protocol.
(3) Broadband users not required to pay any compensation for any of
the broadband services that they receive are considered to receive free
broadband service. If a broadband user pays any compensation for any
broadband service directly or indirectly affiliated with the licensee,
the user does not receive free service. For purposes of this
requirement, wireless broadband users receive either free or fee-base
service, not both. The compensation paid for broadband service does not
include any compensation paid for user/customer equipment. A minimum
engineered data rate means that the wireless network is designed,
constructed, and implemented to provide meet or exceed the minimum data
rate as measured to/from user devices and the AWS-3 licensee's wireless
facilities. The minimum engineered data rate is subject to future
reassessments by the Commission, including during the term of the
license.
(c) Availability of free broadband service. A 2155-2180 MHz
licensee must make available free broadband service whenever and
wherever the licensee offers any other service that uses AWS-3 spectrum
(even if other such services are offered prior to the performance
deadlines set forth in Sec. 27.14 for the AWS-3 band).
(d) Geographic partitioning, spectrum disaggregation, license
assignment, and transfer. A licensee is not restricted from assigning,
transferring, partitioning, or leasing 2155-2180 MHz spectrum. In such
case, the free broadband requirement would apply to the licensee's or
lessee's network in the AWS-3 band.
(e) User equipment. A 2155-2180 MHz licensee and/or third party
vendor is authorized to determine user/customer equipment pricing,
features, and availability, so long as such determinations are
reasonable and non-discriminatory and in compliance with Sec. 27.16.
(f) Fee-based services. Subject to the provisions in this section,
a 2155-2180 MHz licensee may provide and prioritize fee-based services
as set forth in paragraph (b) of this section. Users and use of the
wireless network for any fee-based service may not be counted towards
satisfaction of the requirement to provide free broadband service.
(g) Fee-based broadband services provided by non-facilities based
wholesale customers of a 2155-2180 MHz licensee. Fee-based broadband
services provided by non-facilities based wholesale customers of a
2155-2180 MHz licensee that use such licensee's network capacity is not
required to provide free broadband service, although such use of the
licensee's network capacity shall be included in any determination of
the licensee's compliance with the free broadband service requirement.
(h) Burden of proof. Once a complainant sets forth a prima facie
case that a 2155-2180 MHz licensee is in violation of the free
broadband service requirement, such licensee shall have the burden of
proof to demonstrate that it is in compliance. Application of the same
lawful network management protocol utilized by the licensee to manage
fee-based traffic is presumptively reasonable.
15. Add new Sec. 27.1193 to read as follows:
Sec. 27.1193 Content Network Filtering Requirement.
(a) The licensee of the 2155-2188 MH band (AWS-3 licensee) must
provide as part of its free broadband service a network-based
mechanism:
(1) That filters or blocks images and text that constitute
obscenity or pornography and, in context, as measured by contemporary
community standards and existing law, any images or text that otherwise
would be harmful to teens and adolescents. For purposes of this rule,
teens and adolescents are children 5 through 17 years of age;
(2) That must be active at all times on any type of free broadband
service offered to customers or consumers through an AWS-3 network. In
complying with this requirement, the AWS-3 licensee must use viewpoint-
neutral means in instituting the filtering mechanism and must otherwise
subject its own content--including carrier-generated advertising--to
the filtering mechanism.
(b) The AWS-3 licensee must:
(1) Inform new customers that the filtering is in place and must
otherwise provide on-screen notice to users. It may also choose
additional means to keep the public informed of the filtering, such as
storefront or Web site notices;
(2) Use best efforts to employ filtering to protect children from
exposure to inappropriate material as defined in paragraph (a)(1) of
this section. Should any commercially-available network filters
installed not be capable of reviewing certain types of communications,
such as peer-to-peer file sharing, the licensee may use other means,
such as limiting access to those types of communications as part of the
AWS-3 free broadband service, to ensure that inappropriate content as
defined in paragraph (a)(1) of this section not be accessible as part
of the service.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING AND
OTHER PROGRAM DISTRIBUTIONAL SERVICES
16. The authority citation for part 74 continues to read as
follows:
Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.
17. Revise Sec. 74.690 to read as follows:
Sec. 74.690 Transition of the 1990-2025 MHz band from the Broadcast
Auxiliary Service to emerging technologies.
(a) New Entrants are collectively defined as those licensees
proposing to use emerging technologies to implement Mobile Satellite
Services in the 2000-2020 MHz band (MSS licensees), those licensees
authorized after July 1, 2004 to implement new Fixed and Mobile
services in the 1990-1995 MHz band, and those licensees authorized
after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands.
New entrants may negotiate with Broadcast Auxiliary Service licensees
operating on a primary basis and fixed service licensees operating on a
primary basis in the 1990-2025 MHz band (Existing Licensees) for the
purpose of agreeing to terms under which the Existing Licensees would
relocate their operations to the 2025-2110 MHz band, to other
authorized bands, or to other media; or, alternatively, would
discontinue use of the 1990-2025 MHz band. New Entrants in the 2020-
2025 MHz band are subject to the specific relocation procedures adopted
in WT Docket 04-356.
(b) An Existing Licensee in the 1990-2025 MHz band allocated for
licensed emerging technology services will maintain primary status in
the band until the Existing Licensee's operations are relocated by a
New Entrant, are discontinued under the terms of paragraph (a) of this
section, or become secondary under the terms of paragraphs (e)(6) or
(f)(1)(a) of this section or the Existing Licensee indicates to a New
Entrant that it declines to be relocated.
(c) The Commission will amend the operating license of the Existing
Licensee to secondary status only if the following requirements are
met:
(1) The service applicant, provider, licensee, or representative
using an emerging technology guarantees payment of all relocation
costs, including all engineering, equipment,
[[Page 36010]]
site and FCC fees, as well as any reasonable additional costs that the
relocated Existing Licensee might incur as a result of operation in
another authorized band or migration to another medium;
(2) The New Entrant completes all activities necessary for
implementing the replacement facilities, including engineering and cost
analysis of the relocation procedure and, if radio facilities are used,
identifying and obtaining, on the incumbents' behalf, new microwave or
Local Television Transmission Service frequencies and frequency
coordination.
(3) The New Entrant builds the replacement system and tests it for
comparability with the existing system.
(d) The Existing Licensee is not required to relocate until the
alternative facilities are available to it for a reasonable time to
make adjustments, determine comparability, and ensure a seamless
handoff. If, within one year after the relocation to new facilities the
Existing Licensee demonstrates that the new facilities are not
comparable to the former facilities, the New Entrant must remedy the
defects.
(e) Subject to the terms of this paragraph (e), the relocation of
Existing Licensees will be carried out by MSS licensees in the
following manner:
(1) Existing Licensees and MSS licensees may negotiate individually
or collectively for relocation of Existing Licensees to one of the
channel plans specified in Sec. 74.602(a)(3) of this chapter. Parties
may not decline to negotiate, though Existing Licensees may decline to
be relocated.
(i) MSS licensees must relocate all Existing Licensees in Nielsen
Designated Market Areas (DMAs) 1-30, as such DMAs existed on September
6, 2000, and all fixed stations operating in the 1990-2025 MHz band on
a primary basis, prior to beginning operations, except those Existing
Licensees that decline relocation. Such relocation negotiations shall
be conducted as ``mandatory negotiations,'' as that term is used in
Sec. 101.73 of this chapter. If these parties are unable to reach a
negotiated agreement, MSS Licensees may involuntarily relocate such
Existing Licensees and fixed stations after December 8, 2004.
(ii) [Reserved]
(iii) On the date that the first MSS licensee begins operations in
the 2000-2020 MHz band, a one-year mandatory negotiation period begins
between MSS licensees and Existing Licensees in Nielsen DMAs 31-210, as
such DMAs existed on September 6, 2000. After the end of the mandatory
negotiation period, MSS licensees may involuntary relocate any Existing
Licensees with which they have been unable to reach a negotiated
agreement. As described elsewhere in this paragraph (e), MSS Licensees
are obligated to relocate these Existing Licensees within the specified
three- and five-year time periods.
(2) Before negotiating with MSS licensees, Existing Licensees in
Nielsen Designated Market Areas where there is a BAS frequency
coordinator must coordinate and select a band plan for the market area.
If an Existing Licensee wishes to operate in the 2025-2110 MHz band
using the channels A03-A07 as specified in the Table in Sec. 74.602(a)
of this part, then all licensees within that Existing Licensee's market
must agree to such operation and all must operate on a secondary basis
to any licensee operating on the channel plan specified in Sec.
74.602(a)(3) of this part. All negotiations must produce solutions that
adhere to the market area's band plan.
(3) [Reserved]
(4) [Reserved]
(5) As of the date the first MSS licensee begins operations in the
1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in
DMAs 31-100, as they existed as of September 6, 2000, within three
years, and in the remaining DMAs, as they existed as of September 6,
2000, within five years.
(6) On December 9, 2013, all Existing Licensees will become
secondary in the 1990-2025 MHz band. Upon written demand by any MSS
licensee, Existing Licensees must cease operations in the 1990-2025 MHz
band within six months.
(f) The 1995-2000 MHz band is allocated for Advanced Wireless
Services (AWS). AWS licensees in this band are New Entrants as defined
in paragraph (a) of this section and therefore must comply with
sections (a), (b), (c), (d), and (f) of this section to the extent AWS
entrants seek to relocate Broadcast Auxiliary Service licensees
operating on a primary basis and fixed service licensees operating on a
primary basis in the 1990-2025 MHz band (Existing Licensees).
(1) New entrants are required to protect Existing Licensees in this
band from interference.
(i) An AWS licensee may not begin operations in a specific Nielsen
Designated Market Area (DMA) until all incumbent operations in that DMA
have been either relocated by an MSS licensee, an AWS entrant, or
another licensee; or discontinued pursuant to the terms of paragraph
(a) of this section. If Existing Licensees remain in the band after
December 9, 2013, they must cease operations within six months of
receiving a written demand from either an MSS licensee or an AWS
licensee.
(ii) An AWS licensee in this band is required conform to the
technical criteria specified in TIA Bulletin TSB 10-F, or procedures
other than TSB 10-F that follow generally acceptable good engineering
practices pursuant to Sec. 101.105(c) of this chapter, to determine
whether its operations in the 1995-2000 MHz band would cause
interference to the operations of Existing Licensees in the 1990-2025
MHz band. To the extent that the TSB 10-F demonstrates that an AWS
licensee may cause interference to Existing Licensees in an adjacent
DMA, the AWS licensee must either relocate the Existing Licensees or
revise its proposed operations to ensure, in accordance with the
technical criteria in the TSB 10-F, that its revised operations will
not cause interference to Existing Licensees in adjacent DMAs.
(2) If a specific DMA has not yet been cleared and an AWS licensee
seeks to begin operations in the specific DMA, an AWS licensee may
negotiate with an Existing Licensee for the purpose of agreeing to
terms under which the Existing Licensees would relocate their
operations to one of the channel plans specified in Sec. 74.602(a)(3)
to other authorized bands, or to other media; or, alternatively, would
discontinue use of the 1990-2025 MHz band. An AWS licensee may
negotiate individually or collectively for relocation of Existing
Licensees, but the AWS licensee is required to coordinate its
anticipated clearance schedule with other New Entrants. New entrants
are expected to work cooperatively with all interested parties to avoid
duplicative efforts and undue delay in the negotiation and transition
process. Parties may not decline to negotiate, though Existing
Licensees may decline to be relocated. The good faith provisions set-
forth in Sec. 101.73 of this chapter apply throughout the negotiation
and relocation process.
(3) If a mandatory negotiation period for or an involuntary
relocation of Existing Licensees in a particular DMA has already been
triggered pursuant to paragraph (e) of this section or pursuant to
provisions set-forth elsewhere in this chapter or by order in WT Docket
02-55, ET Docket 00-258, or ET Docket 95-18, an AWS licensee seeking to
operate in that particular DMA will not trigger a new negotiation or
involuntary relocation schedule pursuant to this section. If such has
not occurred with respect to a specific DMA, the following shall apply
to AWS licensees at 1995-2000 MHz:
[[Page 36011]]
(i) Existing Licensees in DMAs 1-30, as such DMAs existed on
September 6, 2000, are subject to involuntary relocation. Under
involuntary relocation, the Existing Licensees are required to relocate
providing that the New Entrant complies with the requirements set-forth
in paragraph (c) of this section and furnishes Existing Licensees with
comparable facilities, as defined in Sec. 101.75 (b) of this chapter.
(ii) For the remaining DMAs, as such DMAs existed on September 6,
2000, a one-year mandatory negotiation period will commence between
Existing Licensees and New Entrants (if such has not already occurred
or been triggered) when an AWS licensee approaches any Existing
Licensee operating in the specific DMA. Mandatory negotiations shall be
conducted in accordance with the good faith provisions set-forth in
Sec. 101.73 of this chapter with the goal of providing the Existing
Licensees with comparable facilities, as defined in Sec. 101.73(d)(1)
through (3) of this chapter. After the end of the mandatory negotiation
period, an AWS licensee may involuntary relocate any Existing Licensees
with which they have been unable to reach a negotiated agreement.
(iii) To the extent the Commission adopts an earlier transition
date to relocate Existing Licensees in a specific DMA in WT Docket 02-
55, ET Docket 00-258, or ET Docket 95-18, AWS licensees and Existing
Licensees shall comply with the requirements set-forth and adopted in
those proceedings.
PART 78--CABLE TELEVISION RELAY SERVICE
18. The authority citation for part 78 continues to read as
follows:
Authority: 47 U.S.C. Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48
Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085;
47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.
19. Section 78.40 is revised as follows:
Sec. 78.40 Transition of the 1990-2025 MHz band from the Cable
Television Relay Service to Emerging Technologies.
(a) New Entrants are collectively defined as those licensees
proposing to use emerging technologies to implement Mobile Satellite
Services in the 2000-2020 MHz band (MSS licensees), those licensees
authorized after July 1, 2004 to implement new Fixed and Mobile
services in the 1990-1995 MHz band, and those licensees authorized
after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands.
New entrants may negotiate with Cable Television Relay Service
licensees operating on a primary basis and fixed service licensees
operating on a primary basis in the 1990-2025 MHz band (Existing
Licensees) for the purpose of agreeing to terms under which the
Existing Licensees would relocate their operations to the 2025-2110 MHz
band, to other authorized bands, or to other media; or, alternatively,
would accept a sharing arrangement with the New Entrants that may
result in an otherwise impermissible level of interference to the
Existing Licensee's operations. New Entrants in the 2020-2025 MHz band
are subject to the specific relocation procedures adopted in WT Docket
04-356.
(b) Existing Licensees in the 1990-2025 MHz band allocated for
licensed emerging technology services will maintain primary status in
the band until a New Entrant completes relocation of the Existing
Licensee's operations, Existing Licensee indicates to a New Entrant
that it declines to be relocated, become secondary under the terms of
paragraphs (f)(6) or (g)(1)(i) of this section.
(c) The Commission will amend the operating license of the Existing
Licensee to secondary status only if the following requirements are
met:
(1) The service applicant, provider, licensee, or representative
using an emerging technology guarantees payment of all relocation
costs, including all engineering, equipment, site and FCC fees, as well
as any reasonable additional costs that the relocated Existing Licensee
might incur as a result of operation in another authorized band or
migration to another medium;
(2) The New Entrant completes all activities necessary for
implementing the replacement facilities, including engineering and cost
analysis of the relocation procedure and, if radio facilities are used,
identifying and obtaining, on the incumbents' behalf, new microwave or
Cable Television Relay Service frequencies and frequency coordination.
(3) The New Entrant builds the replacement system and tests it for
comparability with the existing system.
(d) The Existing Licensee is not required to relocate until the
alternative facilities are available to it for a reasonable time to
make adjustments, determine comparability, and ensure a seamless
handoff.
(e) If, within one year after the relocation to new facilities the
Existing Licensee demonstrates that the new facilities are not
comparable to the former facilities, the New Entrant must remedy the
defect.
(f) Subject to the terms paragraph (f) of this section, the
relocation of Existing Licensees will be carried out by MSS licensees
in the following manner:
(1) Existing Licensees and MSS licensees may negotiate individually
or collectively for relocation of Existing Licensees to one of the
channel plans specified in Sec. 74.602(a)(3). Parties may not decline
to negotiate, though Existing Licensees may decline to be relocated.
(i) MSS licensees must relocate all Existing Licensees in Nielsen
Designated Market Areas (DMAs) 1-30, as such DMAs existed on September
6, 2000, prior to beginning operations, except those Existing Licensees
that decline relocation. Such relocation negotiations shall be
conducted as ``mandatory negotiations,'' as that term is used in Sec.
101.73 of this chapter. If these parties are unable to reach a
negotiated agreement, MSS Licensees may involuntarily relocate such
Existing Licensees after December 8, 2004.
(ii) [Reserved]
(iii) On the date that the first MSS licensee begins operations in
the 2000-2020 MHz band, a one-year mandatory negotiation period begins
between MSS licensees and Existing Licensees in DMAs 31-210, as such
DMAs existed on September 6, 2000. After the end of the mandatory
negotiation period, MSS licensees may involuntary relocate any Existing
Licensees with which they have been unable to reach a negotiated
agreement. As described elsewhere in this paragraph (f), MSS Licensees
are obligated to relocate these Existing Licensees within the specified
three- and five-year time periods.
(2) Before negotiating with MSS licensees, Existing Licensees in
Nielsen Designated Market Areas where there is a BAS frequency
coordinator must coordinate and select a band plan for the market area.
If an Existing Licensee wishes to operate in the 2025-2110 MHz band
using the channel plan specified in Sec. 78.18(a)(6)(i), then all
licensees within that Existing Licensee's market must agree to such
operation and all must operate on a secondary basis to any licensee
operating on the channel plan specified in Sec. 78.18(a)(6)(ii). All
negotiations must produce solutions that adhere to the market area's
band plan.
(3) [Reserved]
(4) [Reserved]
(5) As of the date the first MSS Licensee begins operations in the
1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in
DMAs 31-100, as they existed as of September 6, 2000, within three
years, and in the remaining DMAs, as they existed as of September 6,
2000, within five years.
(6) On December 9, 2013, all Existing Licensees will become
secondary in the
[[Page 36012]]
1990-2025 MHz band. Upon written demand by any MSS Licensee, Existing
Licensees must cease operations in the 1990-2025 MHz band within six
months.
(g) The 1995-2000 MHz band is allocated for Advanced Wireless
Services (AWS). AWS licensees in this band are New Entrants as defined
in paragraph (a) of this section and therefore must comply with
sections (a), (b), (c), (d), (e) and (g) of this section to the extent
AWS entrants seek to relocate Broadcast Auxiliary Service licensees
operating on a primary basis and fixed service licensees operating on a
primary basis in the 1990-2025 MHz band (Existing Licensees).
(1) AWS licensees are required to protect previously Existing
Licensees in this band from interference.
(i) An AWS licensee may not begin operations in a specific Nielsen
Designated Market Area (DMA) until all incumbent operations in that DMA
have been either relocated by an MSS licensee, an AWS entrant, or
another licensee; or discontinued pursuant to the terms of paragraph
(a) of this section. If Existing Licensees remain in the band after
December 9, 2013, they must cease operations within six months of
receiving a written demand from either an MSS licensee or an AWS
licensee.
(ii) An AWS licensee in this band is required to conform to the
technical criteria specified in TIA Bulletin TSB 10-F, or procedures
other than TSB 10-F that follow generally acceptable good engineering
practices pursuant to Sec. 101.105(c) of this chapter, to determine
whether its operations in the 1995-2000 MHz band would cause
interference to the operations of Existing Licensees in the 1990-2025
MHz band. To the extent that the TSB 10-F demonstrates that an AWS
licensee may cause interference to Existing Licensees in an adjacent
DMA, the AWS licensee must either relocate the Existing Licensees or
revise its proposed operations to ensure, in accordance with the
technical criteria in the TSB 10-F, that its revised operations will
not cause interference to Existing Licensees in adjacent DMAs.
(2) If a specific DMA has not yet been cleared and an AWS licensee
seeks to begin operations in the specific DMA, an AWS licensee may
negotiate with an Existing Licensee for the purpose of agreeing to
terms under which the Existing Licensees would relocate their
operations to one of the channel plans specified in Sec. 74.602(a)(3)
of this chapter, to other authorized bands, or to other media; or,
alternatively, would discontinue use of the 1990-2025 MHz band. An AWS
licensee may negotiate individually or collectively for relocation of
Existing Licensees, but the AWS licensee is required to coordinate its
anticipated clearance schedule with other New Entrants. New entrants
are expected to work cooperatively with all interested parties to avoid
duplicative efforts and undue delay in the negotiation and transition
process. Parties may not decline to negotiate, though Existing
Licensees may decline to be relocated. The good faith provisions set-
forth in Sec. 101.73 of this chapter apply throughout the negotiation
and relocation process.
(3) If a mandatory negotiation period for or an involuntary
relocation of Existing Licensees in a particular DMA has already been
triggered pursuant to paragraph (e) of this section or pursuant to
provisions set-forth elsewhere in this chapter or by order in WT Docket
02-55, ET Docket 00-258, or ET Docket 95-18, an AWS licensee seeking to
operate in that particular DMA will not trigger a new negotiation or
involuntary relocation schedule pursuant to this section. If such has
not occurred with respect to a specific DMA, the following shall apply
to AWS licensees at 1995-2000 MHz:
(i) Existing Licensees in DMAs 1-30, as such DMAs existed on
September 6, 2000, are subject to involuntary relocation. Under
involuntary relocation, the Existing Licensees are required to relocate
providing that the New Entrant complies with the requirements set-forth
in paragraph (c) of this section and furnishes Existing Licensees with
comparable facilities, as defined in Sec. 101.75(b) of this chapter.
(ii) For the remaining DMAs, as such DMAs existed on September 6,
2000, a one-year mandatory negotiation period will commence between
Existing Licensees and New Entrants (if such has not already occurred
or been triggered) when an AWS licensee approaches any Existing
Licensee operating in the specific DMA. Mandatory negotiations shall be
conducted in accordance with the good faith provisions set-forth in
Sec. 101.73 of this chapter with the goal of providing the Existing
Licensees with comparable facilities, as defined in Sec. 101.73(d)(1)-
(3) of this chapter. After the end of the mandatory negotiation period,
an AWS licensee may involuntary relocate any Existing Licensees with
which they have been unable to reach a negotiated agreement.
(iii) To the extent the Commission adopts an earlier transition
date to relocate Existing Licensees in a specific DMA in WT Docket 02-
55, ET Docket 00-258, or ET Docket 95-18, AWS licensees and Existing
Licensees shall comply with the requirements set-forth and adopted in
those proceedings.
PART 101--FIXED MICROWAVE SERVICES
20. The authority citation for part 101 continues to read as
follows:
Authority: 47 U.S.C. Secs. 154, 303.
21. Revise Sec. 101.69 to read as follows: Policies Governing
Microwave Relocation From the 1850-1990 and 2110-2200 MHz Bands
Sec. 101.69 Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal
communications services and emerging technologies.
Fixed Microwave Services (FMS) in the 1850-1990 MHz, 2110-2150 MHz,
and 2160-2200 MHz bands have been allocated for use by emerging
technology (ET) services, including Personal Communications Services
(PCS), Advanced Wireless Services (AWS), and Mobile Satellite Services
(MSS). The rules in this section provide for a transition period during
which ET licensees may relocate existing FMS licensees using these
frequencies to other media or other fixed channels, including those in
other microwave bands.
(a) ET licensees may negotiate with FMS licensees authorized to use
frequencies in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz
bands, for the purpose of agreeing to terms under which the FMS
licensees would:
(1) Relocate their operations to other fixed microwave bands or
other media; or alternatively
(2) Accept a sharing arrangement with the ET licensee that may
result in an otherwise impermissible level of interference to the FMS
operations.
(b)-(c) [Reserved]
(d) Relocation of FMS licensees in the 2110-2150 and 2160-2200 MHz
band will be subject to mandatory negotiations only. Except as provided
in paragraph (e) of this section, mandatory negotiation periods are
defined as follows:
(1) Non-public safety incumbents will have a two-year mandatory
negotiation period; and
(2) Public safety incumbents will have a three-year mandatory
negotiation period.
(e) Relocation of FMS licensees by Mobile-Satellite Service (MSS)
licensees, including MSS licensees providing Ancillary Terrestrial
Component (ATC) service, will be subject to mandatory negotiations
only. Mandatory negotiation periods that are
[[Page 36013]]
triggered in the first instance by MSS/ATC licensees are defined as
follows:
(1) The mandatory negotiation period for non-public safety
incumbents will end December 8, 2004.
(2) The mandatory negotiation period for public safety incumbents
will end December 8, 2005.
(f) AWS licensees operating in the 1915-1920 MHz band will follow
the requirements and procedures set forth in ET Docket No. 00-258 and
WT Docket No. 04-356.
(g) If no agreement is reached during the mandatory negotiation
period, an ET licensee may initiate involuntary relocation procedures.
Under involuntary relocation, the incumbent is required to relocate,
provided that the ET licensee meets the conditions of Sec. 101.75.
22. Section 101.79 is amended by revising paragraph (a) to read as
follows:
Sec. 101.79 Sunset provisions for licensees in the 1850-1990 MHz,
2110-2150 MHz, and 2160-2200 MHz bands.
(a) FMS licensees will maintain primary status in the 1850-1990
MHz, 2110-2150 MHz, and 2160-2200 MHz bands unless and until an ET
licensee (including MSS/ATC operator) requires use of the spectrum. ET
licensees are not required to pay relocation costs after the relocation
rules sunset. Once the relocation rules sunset, an ET licensee may
require the incumbent to cease operations, provided that the ET
licensee intends to turn on a system within interference range of the
incumbent, as determined by TIA TSB 10-F (for terrestrial-to-
terrestrial situations) or TIA TSB 86 (for MSS satellite-to-terrestrial
situations) or any standard successor. ET licensee notification to the
affected FMS licensee must be in writing and must provide the incumbent
with no less than six months to vacate the spectrum. After the six-
month notice period has expired, the FMS licensee must turn its license
back into the Commission, unless the parties have entered into an
agreement which allows the FMS licensee to continue to operate on a
mutually agreed upon basis. The date that the relocation rules sunset
is determined as follows:
(1) For the 2110-2150 MHz and 2160-2180 MHz bands, ten years after
the first ET license is issued in the respective band; and
(2) For the 2180-2200 MHz band, December 8, 2013 (i.e., ten years
after the mandatory negotiation period begins for MSS/ATC operators in
the service).
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[FR Doc. E8-14423 Filed 6-24-08; 8:45 am]
BILLING CODE 6712-01-P