[Federal Register: November 17, 2008 (Volume 73, Number 222)]
[Rules and Regulations]
[Page 67794-67801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no08-17]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[WT Docket No. 05-62; WT Docket No. 02-55; FCC 08-244]
Amendment of the Commission's Rules To Improve Public Safety
Communications in the 800 MHz Band, and to Consolidate the 800 MHz and
900 MHz Business and Industrial/Land Transportation Pool Channels
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) retains the current site-based licensing paradigm for the
900 MHz B/ILT spectrum, and declines to adopt competitive bidding rules
or geographic service areas for the licensing of 900 MHz B/ILT ``white
space;'' adopts interference protection rules applicable to all
licensees operating in the 900 MHz B/ILT spectrum; and lifts, on a
rolling basis, the freeze placed on applications for new 900 MHz B/ILT
licenses in September 2004, the lift being tied to the completion of
rebanding in each 800 MHz National Public Safety Planning Advisory
Committee (NPSPAC) region. The Commission takes these actions to
balance the needs of incumbent 900 MHz B/ILT licensees and commercial
providers that operate in the spectrum.
DATES: Effective December 17, 2008.
FOR FURTHER INFORMATION CONTACT: Michael Connelly,
Michael.Connelly@FCC.gov, Mobility Division, Wireless
Telecommunications Bureau, (202) 418-0620, or TTY (202) 418-7233. For
additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, contact
Judith Boley at 202-418-0214, or via the Internet at PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Report and Order (R&O), FCC 08-244, adopted
October 9, 2008, and released October 22, 2008. The full text of the
R&O is available for public inspection and
[[Page 67795]]
copying during regular business hours at the FCC Reference Information
Center, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The
complete text may be purchased from the Commission's duplicating
contractor, Best Copying and Printing, Inc. (BCPI), 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, FCC 08-244, for the R&O. The R&O is
also available on the Internet at the Commission's Web site through its
Electronic Document Management System (EDOCS): http://
hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.
Paperwork Reduction Act of 1995 Analysis
The R&O does not contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, it does not contain any new or modified
``information collection burden for small business concerns with fewer
than 25 employees,'' pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Synopsis of Report and Order
I. Background
1. In 1986, the Commission established a pool structure for the 900
MHz PLMR spectrum and allocated 2.5 MHz for the Industrial/Land
Transportation Pool (99 channels) and 2.5 MHz for the Business Pool
(100 channels) (collectively, the B/ILT Pools) at 51 FR 37398, Oct. 22,
1986. The B/ILT Pools were established for use by site-by-site
licensees engaged in commercial activities, the operation of
educational, philanthropic, or ecclesiastical institutions, clergy
activities, or the operation of hospitals, clinics, or medical
associations. In addition, eligibility was also provided for any
corporations furnishing nonprofit radio communication service to its
parent corporation or subsidiary. Currently, applications for use of
the B/ILT frequencies are limited to private, internal use systems.
2. In its 800 MHz Report and Order (800 MHz R&O) at 69 FR 67823,
Nov. 22, 2004, the Commission adopted significant technical and
procedural measures designed to address the problem of interference to
public safety communications in the 800 MHz band. As part of its
reconfiguration plan at 800 MHz, the Commission consolidated the B/ILT
Pools in the 800 MHz and 900 MHz bands, allowing any eligible B/ILT
licensee to be licensed on the consolidated channels. The Commission
also provided for additional flexibility in the 900 MHz band by
allowing 900 MHz PLMR licensees to initiate CMRS operations on their
currently authorized spectrum or to assign their authorizations to
others for CMRS use. The Commission reasoned that since it permitted
CMRS use of PLMR frequencies in the 800 MHz land mobile band, similar
rules should apply in the 900 MHz land mobile spectrum, in the interest
of regulatory symmetry. The Commission also noted that in order to
provide the ``green space'' necessary to effect reconfiguration of the
800 MHz band, some operations may need to shift from the 800 MHz to 900
MHz band.
3. In September 2004, the Bureau issued a Public Notice freezing
acceptance of applications for new 900 MHz B/ILT licenses until further
notice. The Wireless Telecommunications Bureau (the Bureau) indicated
that an exceptionally large number of applications for 900 MHz
authorizations had been filed subsequent to the release of the 800 MHz
R&O, which allowed 900 MHz B/ILT licensees to initiate commercial
operations on their licensed spectrum or to assign their authorizations
to others for commercial use. The Bureau noted its concern that
additional such filings might compromise the ability to accommodate
displaced systems while the 800 MHz band is reconfigured to abate
unacceptable interference to public safety, critical infrastructure,
and other ``high site'' 800 MHz systems. The Bureau determined that
applications for modification of existing facilities, assignment of
license, or transfer of control of a licensee would continue to be
accepted, subject to applicable rules regarding eligibility, loading,
and other requirements. In addition, applicants were advised that they
might have recourse via the Commission's waiver provisions to request
an exception to the freeze.
4. The Commission adopted a Notice of Proposed Rulemaking (NPRM) at
70 FR 13,143, March 18, 2005, in WT Docket 05-62 proposing to amend
it's rules to facilitate more flexible use of the 900 MHz B/ILT band
and to license any remaining spectrum in the band using a geographic
area licensing scheme. The NPRM also sought comment on defining the
rights of B/ILT licensees already operating on the 900 MHz B/ILT
frequencies, and on using competitive bidding rules, in the event
mutually exclusive applications were filed for the proposed 900 MHz
geographic licenses. The Commission also reaffirmed the Bureau's freeze
on new applications for 900 MHz B/ILT licenses, concluding that
allowing the continued filing of applications for new 900 MHz B/ILT
licenses during the rulemaking period might limit the effectiveness of
the decisions ultimately made in WT Docket No. 05-62. In response to
the NPRM, the Commission received 20 comments, ten reply comments, and
numerous ex parte filings.
II. Discussion
A. Retention of Site-Based Licensing for 900 MHz B/ILT Channels
5. In the R&O, the Commission retained the current site-based
licensing paradigm for new applications for 900 MHz B/ILT licenses,
declining to adopt at this time the geographic area and competitive
bidding licensing rules and policies proposed in the NPRM. There, the
Commission proposed service rules for 900 MHz B/ILT channels to provide
licensees with the flexibility to employ the spectrum for any use
permitted by the United States Table of Frequency Allocations contained
in part 2 of our rules (i.e., fixed or mobile services). The Commission
tentatively concluded to adopt a geographic area licensing scheme for
the 900 MHz B/ILT spectrum because such an approach would be consistent
with flexible use management principles, and requested comment on that
tentative conclusion.
6. Some commenters supported competitive bidding and flexible use
rules (including geographic area licensing) for all unlicensed 900 MHz
B/ILT spectrum. For example, Nextel asserted that the existing 900 MHz
B/ILT access rules are limiting, inefficient, and a gross
underutilization of spectrum that, if unchanged, would impede the
ability of the marketplace to respond to consumer demand. While
conceding that there may be circumstances under which the Commission
may need to ``set aside'' spectrum for particular uses in order to
achieve important public interest goals, Nextel notes the Commission
has in the past decade adopted flexible and competitive licensing
policies to promote an innovative marketplace, and that auctioning all
unused 900 MHz B/ILT spectrum will facilitate successful 800 MHz
reconfiguration.
7. The majority of commenters opposed using competitive bidding to
license the remaining 900 MHz B/ILT spectrum using geographic service
[[Page 67796]]
areas, many of whom urge the Commission, if it were to conduct an
auction, to set aside some portion of currently unlicensed 900 MHz B/
ILT white space for traditional B/ILT use. For example, the Joint
Commenters contended that auctioning all 900 MHz B/ILT white space was
tantamount to a ``complete loss'' of the 900 MHz band for incumbent B/
ILT licensees, and would ``strand'' incumbents at their existing
capacity levels and service areas. The Joint Commenters questioned
whether the public interest truly is best served by allocating all
unencumbered spectrum for cell phones and utilizing spectrum auctions
in light of the growth needs of traditional B/ILT licensees. In the
event the Commission were to decide to auction and license all
available 900 MHz B/ILT white space, the Joint Commenters urge the
Commission to reserve some spectrum for continued site-based licensing
under current eligibility requirements.
8. The Commission found that the record, as developed in the
docket, supports retention of the current site-based licensing formula
for the 900 MHz B/ILT spectrum, and therefore declined to adopt
competitive bidding rules or geographic service areas to license 900
MHz B/ILT ``white space.'' It was persuaded by the record that the
dedicated spectrum allotted to B/ILT licensees at 900 MHz represents
one of the few remaining opportunities for such licensees to obtain
much-needed spectrum, noting geographic-based service area licensing in
lieu of site-based licensing would do little in terms of meeting the
needs of current and future 900 MHz B/ILT licensees, many of whom would
be forced to acquire at auction more spectrum than what they actually
need, or can afford, to ensure that they have adequate spectrum
necessary for wireless telecommunications systems to support their
operations. Even if a traditional 900 MHz B/ILT licensee determined
that it was fiscally responsible to acquire a geographic-based license,
the Commission remained concerned that portions of the acquired
spectrum would remain unused and undervalued, precisely the result the
Commission sought to avoid when it opened this proceeding.
9. A significant underlying rationale for proposing geographic
service areas and competitive bidding rules to license 900 MHz B/ILT
spectrum white space was the need to facilitate 800 MHz rebanding, on
the theory that 800 MHz commercial licensees would need to relocate to
a band with similar spectral characteristics. Sprint Nextel, an 800 MHz
commercial licensee, has indicated that it has acquired hundreds of 900
MHz B/ILT site-based licenses, and will continue to acquire such
licenses, in order to support 800 MHz rebanding. In addition, Sprint
Nextel has obtained special temporary authority (STA) from the
Commission to operate on a temporary basis on 900 MHz B/ILT spectrum in
order to support its 800 MHz rebanding efforts. Finally, Sprint Nextel
is using spectrum leasing arrangements as a means for obtaining 900 MHz
B/ILT spectrum to be used on a time-limited basis to facilitate 800 MHz
rebanding. Those options remain open to Sprint Nextel under the action
the Commission took in the R&O. In light of the opportunities Nextel
has for obtaining 900 MHz B/ILT spectrum to support its 800 MHz
rebanding activities, adoption of geographic area licensing and
competitive bidding rules for 900 MHz B/ILT spectrum is no longer
essential to the success of the 800 MHz rebanding process, and may in
fact impede the effective use of this spectrum by many other incumbents
and potential licensees in the 900 MHz B/ILT band.
B. Interference Protection in the 900 MHz B/ILT Band
10. In the NPRM, the Commission proposed requiring geographic area
licensees to afford the same protection to incumbent 900 MHz B/ILT
systems that 900 MHz SMR MTA licensees must currently provide to
incumbents. The Commission also asked if additional interference
protection requirements were necessary and, if so, what additional
rules should apply and why. The Commission specifically asked whether
the overall approach to interference protection should be modified to
include the interference abatement requirements mandated in the 800 MHz
R&O, or an enhanced or voluntary Best Practices approach to address
potential interference in this band.
11. A number of commenters urged adoption of the same or similar
interference abatement requirements for the 900 MHz B/ILT spectrum as
those previously established for a post-rebanded 800 MHz environment in
the 800 MHz R&O. In initial comments in this proceeding, for example,
the Joint Commenters asserted that it is imperative that incumbents be
adequately protected from interference caused by new (commercial)
entrants. They also asserted there is reason to believe the
introduction of commercial cellular networks into the 900 MHz bands
would cause harmful interference to incumbents in the bands. AAR also
urges adoption of the 800 MHz interference abatement rules. In a
subsequent ex parte presentation, the Joint Commenters, joined by
Enterprise Wireless Alliance and United Parcel Service, urged that
Sec. 90.672(a) of the Commission's rules regarding unacceptable
interference to non-cellular 800 MHz licensees from 800 MHz cellular
systems or part 22 cellular systems be amended to include 900 MHz B/ILT
spectrum. Section 90.672(a) defines ``unacceptable interference'' as
occurring when a fully operational transceiver receives minimum median
desired signal strengths of -104/-101 dBm, as measured at the radio
frequency (RF) input of the receiver of a mobile/portable unit, and
when a voice transceiver receives an undesired signal or signals that
cause the measured Carrier to Noise plus Interference (C/(I+N)) ratio
of a receiver to be less than 20 dB.
12. Sprint Nextel opposed implementing the same standards in 900
MHz B/ILT spectrum as the Commission adopted for post-rebanded 800 MHz
spectrum. Initially, in responding to the proposals set out in the
NPRM, Nextel asserted that new 900 MHz B/ILT geographic area licensees
should provide the same level of protection to co-channel 900 MHz B/ILT
incumbents that 900 MHz SMR licensees must provide, and that incumbents
are entitled to protection within their originally-licensed 40 dB[mu]
V/m field strength contours. Further, it urges voluntary ``Best
Practices'' and a commitment by 900 MHz CMRS licensees to cooperate on
a case-by-case basis with incumbent 900 MHz B/ILT licensees. Nextel
cautioned strongly against adopting the interference abatement
requirements adopted in the 800 MHz R&O, on the grounds that there are
no public safety channels allocated at 900 MHz; that incumbents can
finance robust, interference-resistant systems; that there have been no
complaints regarding Sprint Nextel's dual band 800 MHz/900 MHz Enhanced
Specialized Mobile Radio (ESMR) system (operating since 2002); and that
to adopt the 800 MHz interference measures for the 900 MHz white space
would impose substantial operational burdens on geographic licensees,
and would be contrary to the FCC's flexible use policies. In a
subsequent ex parte presentation, Sprint Nextel suggested that, to the
extent the Commission looks to the 800 MHz rebanding proceeding for
guidance regarding interference protection standards and practices for
the 900 MHz B/ILT spectrum, the interference protection standards that
apply to the 800 MHz band's interleaved
[[Page 67797]]
spectrum during the transition to spectral segregation would be more
appropriate than the standards to be applied when the rebanding is
completed. Sprint Nextel avers that the interference abatement
protection it has to extend in an interleaved environment, during the
rebanding transition, while lower than the protection afforded post-
rebanding, is a more comparable standard in light of the nature of
operations in the 900 MHz B/ILT band.
13. The Commission noted that in the 800 MHz Supplemental Report
and Order, 70 FR 6757, Feb. 8, 2005, in the 800 MHz rebanding
proceeding, it had acknowledged that the rules adopted for a post-
rebanded environment could impose substantial operational restrictions
on ESMR carriers operating in the interleaved channels prior to
completion of band reconfiguration, and that field experience had shown
that a lesser standard, while less ``complete,'' could nevertheless
provide meaningful interference protection during transition. The
Commission therefore waived Sec. Sec. 22.970(a) and 90.672(a) of its
rules until band reconfiguration was complete in a particular NPSPAC
region. In waiving the rules, the Commission determined that, during
the interim transition period, non-cellular systems would enjoy
interference protection for signal strengths of -85 dBm for portables
and -88 dBm for mobiles. While noting that these levels were not
universally applauded, the Commission observed that they were supported
by Nextel and several commercial, private, and public safety members of
the 800 MHz community. The Commission found a direct relationship
between these interim interference protection levels and the ability of
ESMR and cellular carriers to serve their subscribers adequately, a
factor affecting both the public's access to wireless services and the
viability of a carrier's business.
14. Noting that a spectrally interleaved environment, where
technically different systems operate on a co-channel and/or adjacent
channel basis, is developing within the 900 MHz band, the Commission
adopted standards in the R&O based on the standards it had implemented
for the rebanding transition period in the 800 MHz band. Specifically,
all licensees operating in the 900 MHz B/ILT frequencies are entitled
to interference protection for portable/hand-held units with a minimum
median desired signal strength of -85 dBm and for mobile/vehicular
units with a minimum median desired signal strength of -88 dBm. Similar
to the Commission's observation in the context of 800 MHz rebanding, it
concluded that these values likewise are ``within the range of reason''
for providing meaningful interference protection for all licensees
operating on 900 MHz B/ILT frequencies. The Commission adopted a
revision to Sec. 90.672 of it's rules that provides that unacceptable
interference will be deemed to occur to operations in the 900 MHz B/ILT
band where, assuming all other conditions as provided in the amended
rule section are met, a voice transceiver is receiving an undesired
signal or signals that cause the measured Carrier to Noise plus
Interference (C/(I+N)) ratio of the transceiver's received to be less
than 17 dB. As with the median desired signal, the value the Commission
adopted for this ratio is consistent with the value that is applicable
to the 800 MHz band during the rebanding transition. Finally, the
Commission adopted the proposal put forth by the Joint Commenters for
establishing minimum receiver standards for mobile and portable units
used in the 900 MHz B/ILT band: 60 dB intermodulation rejection ratio;
60 dB adjacent channel rejection; and -116 dBm reference sensitivity.
These minimum receiver standards are part of the package of rule
provisions designed to guard against unacceptable interference in the
900 MHz B/ILT band.
C. Lifting the Freeze Place on Applications for New 900 MHz B/ILT
Licenses
15. The Bureau imposed a freeze on the acceptance of applications
for new 900 MHz B/ILT licenses in September 2004 at 19 FCC Rcd 18277
(WTB 2004), and the Commission affirmed that freeze in the NPRM.
Because the Commission is concluding WT Docket 05-62, and in light of
the actions it took in the R&O, the Commission lifted the freeze placed
on the filing of applications for new 900 MHz B/ILT authorizations.
Specifically, the freeze will be lifted in a NPSPAC region six months
after rebanding is complete in that particular NPSPAC region. The
Commission believes this approach best balances the demands for 900 MHz
B/ILT spectrum, including the ongoing needs of Nextel for access to
this spectrum to support its rebanding efforts. As of October 9, 2008,
the Commission has granted special temporary authorizations to Sprint
Nextel to operate temporarily on 900 MHz B/ILT spectrum in 101 markets
in order to provide ``green space'' necessary to enable the relocation
of 800 MHz incumbents during the reconfiguration of this band. The
Commission is concerned that lifting the 900 MHz B/ILT application
freeze in its entirety at this time could jeopardize Nextel's 800 MHz
rebanding efforts. Accordingly, we will not lift the freeze in a
particular NPSPAC region until six months after the date that rebanding
is completed in that particular region. We believe that this timeframe
will provide Nextel a reasonable opportunity to relocate its facilities
off the 900 MHz B/ILT frequencies it is now using under special
temporary authority. In order to avoid any confusion regarding the date
when the 900 MHz B/ILT application freeze is lifted in any particular
NPSPAC region, the Commission directed the Bureau, in coordination with
the Public Safety and Homeland Security Bureau, to provide public
notice as to when the freeze will end within 60 days of rebanding being
completed within a specific NPSPAC region.
16. In addition, the Commission noted there may be situations in
which an applicant seeks a 900 MHz B/ILT authorization for spectrum in
a NPSPAC region where the freeze has been lifted that could extend the
applicant's service contour into an adjacent NPSPAC region where the
freeze has not been lifted. In such a case, the applicant may file a
waiver request to allow its coverage to extend into the NPSPAC region
in which the freeze remains in effect, provided the overlapping
coverage area is limited and would not disrupt Nextel's rebanding
efforts in the region. Further, the Commission reminded potential 900
MHz B/ILT applicants that, under the applicable rules, co-channel
frequency usage in a NPSPAC region where the freeze has not yet been
lifted may limit the geographic area in which applications can be
permissibly filed in a NPSPAC region where the freeze is no longer in
effect.
III. Conclusion
17. In the R&O, the Commission decided to retain site-based
licensing for the 900 MHz B/ILT band, believing this action will help
ensure the continued viability of 900 MHz B/ILT communications
operations, which play an essential role in emergencies, critical
infrastructure operations, homeland security, and the U.S. economy. At
the same time, Nextel will retain a number of mechanisms to access 900
MHz B/ILT spectrum to be used as ``green space'' during the course of
the 800 MHz rebanding process. The Commission also adopted interference
standards that will help to facilitate interference-free operation in
this band and accommodate the range of licensees operating in this
band. Finally, the Commission lifted the freeze on the filing of
applications for new 900 MHz
[[Page 67798]]
B/ILT licenses in each 800 MHz NPSPAC region six months after 800 MHz
rebanding is completed in that region. The Commission believes that its
actions in this proceeding achieve a balance of competing interests
that will best serve the needs of the public.
IV. Procedural Matters
A. Regulatory Flexibility Act
18. As required by the Regulatory Flexibility Act of 1980 (RFA),
the Commission has prepared a Final Regulatory Flexibility Analysis
(FRFA) of the possible significant economic impact on small entities of
the policies and rules adopted in this R&O. The analysis is found in an
appendix to the R&O.
B. Congressional Review Act
19. The Commission will send a copy of the R&O to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
C. Accessible Formats
20. Accessible formats of the R&O (Braille, large print, electronic
files, audio format), are available to persons with disabilities by
sending an e-mail to fcc504@fcc.gov or by calling the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(TTY). The R&O can also be downloaded at http://www.fcc.gov.
V. Final Regulatory Flexibility Act Analysis
21. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking (NPRM). The
Commission sought written public comment on the proposals in the NPRM,
including comment on the IRFA. This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Rules
22. In the R&O, the Commission takes three actions: First, it
retains the current site-based licensing paradigm for the 199 channels
allocated to the Business and Industrial Land Transportation (B/ILT
Pool) in the 896-901/935-940 MHz (900 MHz) band (900 MHz B/ILT Pool)
and declines to adopt competitive bidding rules or geographic service
areas for the 900 MHz B/ILT ``white space;'' second, it amends part 90
of the Commission's rules to establish interference protection rules
for licensees operating in the 900 MHz B/ILT Pool; and third, it lifts,
on a rolling basis, the freeze on applications for new licenses in the
900 MHz B/ILT Pool.
23. Regarding retention of the current site-based licensing
paradigm, the spectrum allotted to 900 MHz B/ILT licensees is one of
the few remaining area where such licensees can obtain spectrum
essential to their safe and efficient operation; transitioning to
geographic area licensing could in many cases frustrate normal B/ILT
system growth. Traditional B/ILT licensees have a vital communications
role in safeguarding critical infrastructure (CI) industries, including
such varied and critical industries as utilities, land transportation,
manufacturers/industry, and petro-chemical. Finally, an important
rationale for originally proposing to adopt geographic service areas
and competitive bidding processes was to facilitate rebanding at 800
MHz by allowing Sprint Nextel to relocate to spectrally-similar 900 MHz
B/ILT spectrum. Through a combination of acquisition of site-based
licenses, special temporary authorizations, and spectrum leasing at 900
MHz, Sprint Nextel appears to have acquired sufficient spectrum at 900
MHz to allow it to proceed with the 800 MHz rebanding, and the
Commission concludes that geographic licensing and competitive bidding
rules are not now essential to the success of 800 MHz rebanding.
24. Regarding amending part 90 of the Commission's rules to
establish interference protection standards, the environment at 900 MHz
is similar to the spectrally interleaved environment that exists today
at 800 MHz during the current rebanding transition period. In the 800
MHz Supplemental Report and Order, the Commission adopted an
``interim'' interference protection standard that cellular licensees
need to afford non-cellularized systems prior to the completion of
rebanding. Because the 900 MHz band has and will continue to include
systems employing different technologies and with different operational
characteristics that are spectrally interleaved, the 800 MHz
``interim'' environment is sufficiently similar to the 900 MHz spectrum
environment that the rules the Commission adopted for use during the
800 MHz rebanding transition are appropriate for the 900 MHz B/ILT
spectrum.
25. Regarding lifting the freeze on applications for new licenses
in the 900 MHz B/ILT Pool, the freeze placed on applications for new
900 MHz B/ILT licenses in September 2004 will be lifted on a rolling
basis, tied to the completion of rebanding in each 800 MHz National
Public Safety Planning Advisory Committee (NPSPAC) region.
Specifically, the freeze will be lifted in a NPSPAC region six months
after rebanding is complete in that particular NPSPAC region. The
Commission will provide notice to the public regarding the date on
which the freeze will be lifted in each NPSPAC region after rebanding
concludes in that region. Accepting applications for new authorizations
on a rolling basis best balance the demands for 900 MHz B/ILT spectrum,
including the ongoing needs of Sprint Nextel for access to this
spectrum to support its rebanding efforts. Lifting the freeze on a
rolling basis, with a six-month ``grace period,'' will provide Sprint
Nextel a reasonable opportunity to relocate its facilities off the 900
MHz B/ILT frequencies it is now using under special temporary
authority.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
26. No comments or reply comments were filed in direct response to
the IRFA.
C. Description and Estimate of the Number of Small Entities To Which
the Rules Will Apply
27. 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 and policies, if adopted. The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. A ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.
28. Small Businesses. Nationwide, there are a total of
approximately 22.4 million small businesses, according to SBA data.
29. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
30. 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.'' As of 2002, there were approximately 87,525
governmental jurisdictions in the United States. This number includes
38,967 county governments, municipalities, and townships, of which
37,373
[[Page 67799]]
(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. In completing this FRFA, we recognize that small governmental
jurisdictions are, in fact, likely to be 900 MHz B/ILT licensees.
31. Wireless Telecommunications Carriers. The SBA has developed a
small business size standard for wireless firms within the broad
economic census category of ``Wireless Telecommunications Carriers
(except Satellite).'' Under this category, the SBA deems a wireless
business to be small if it has 1,500 or fewer employees. For the census
category of wireless telecommunications carrier, Census Bureau data for
2002 show that there were 11,156 firms in this category that operated
for the entire year. Of this, 9,770 had fewer than 100 (one hundred)
employees. Thus, under this category and size standard, the great
majority of firms can be considered small.
32. Licensees in the 900 MHz B/ILT band generally fall into one of
two categories: wireless telecommunications carrier (except satellite)
that provide service to other parties, and entities that use the
spectrum solely for internal purposes, not to provide
telecommunications services to other, but rather to support their
primary operations. The first category of licensees, those that provide
telecommunications service to others, are typically incumbent B/ILT
licensees that have either converted their operations to commercial
use, as is allowed under Commission rules, or assigned their licenses
to a commercial operator for commercial use. Others in this category
include commercial entities operating in this band under special
temporary authority, or through a leasing arrangement with an incumbent
B/ILT licensee. In the second category are more traditional B/ILT
licensees, ``traditional'' in that provision of telecommunications
services is not their primary operation. Rather, these licensees hold
authorizations to operate in the 900 MHz B/ILT only to the extent that
holding such authorizations, and providing communication, further their
primary operations. Examples include public utilities, small, mid-size,
and large manufacturers, parcel delivery companies, etc.
33. Estimates for Private Land Mobile Radio (PLMR) Licensees,
including 900 MHz B/ILT Licensees. As a preliminary matter, we note
that 900 MHz B/ILT licensees fall under the SBA designation of wireless
telecommunications carriers (except satellite). Private land mobile
radio systems serve an essential role in a vast range of industrial,
business, land transportation, and public safety activities. These
radios are used by companies of all sizes operating in all U.S.
business categories. Because of the vast array of PLMR users, the
Commission has not developed a definition of small entities
specifically applicable to PLMR users, nor has the SBA developed so
specific a definition. As noted above, under this category and size
standard, the great majority of firms can be considered small. For the
purpose of determining whether a licensee is a small business as
defined by the SBA, each licensee would need to be evaluated within its
own business area. The Commission's fiscal year 1994 annual report
indicates that, at the end of fiscal year 1994, there were 1,101,711
licensees operating 12,882,623 transmitters in the PLMR bands below 512
MHz. For purposes of FRFA analysis, we assume the vast majority of all
PLMR licensees are small.
34. The Commission has determined that there are approximately
1,000 licensees in the 896-901 MHz and 935-940 MHz B/ILT MHz bands, as
of October 9, 2008; the Commission does not know how many licensees in
these bands are small entities, as the Commission does not collect that
information for these types of entities. The Commission notes that,
under the action it takes in this Order, entities, including small
businesses, may resume filing for authorizations in this service. The
Commission does not know how many entities that will file for
authorization will be small entities. Thus, the Commission assumes, for
purposes of the FRFA, that all prospective licensees are small entities
as that term is defined by the SBA or by our proposed small business
definitions for these bands.
D. Description of Projected Reporting, Recordkeeping, and other
Compliance Requirements
35. There are no new reporting or recordkeeping requirements
adopted in the R&O that impose new compliance requirements on affected
entities.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
36. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance rather than design standards; and (4) an
exemption from coverage of the rule, or any part thereof for small
entities.
37. Regarding retention of the current site-based licensing
formula, the Commission considered adopting competitive bidding rules
and geographic-area licensing, but found that the adverse effects of
changing the licensing system on all current and future licensees in
this service, and particularly including small businesses, were too
great. The Commission is in particular concerned that traditional 900
MHz B/ILT licensees, whose primary business is something other than
provision of communications services, would have to acquire far more
spectrum at auction than they would need, causing the type of spectrum
hoarding and warehousing the Commission has worked against. The
Commission therefore decided to retain the current licensing system.
38. Regarding amending part 90 of the Commission's rules to account
for, and limit harmful interference within, the interleaved environment
of the 900 MHz B/ILT spectrum, the Commission considered three options:
To adopt the same rules as will be applied in the post-rebanded 800 MHz
environment; to retain the current 900 MHz B/ILT interference
protection rules; and to adopt the rules currently in effect at 800 MHz
during the rebanding transition period. The first option could have
been too burdensome for Sprint Nextel and possibly other 900 MHz B/ILT
licensees; complying with 800 MHz-type interference protection would
have been so costly as to prevent Sprint Nextel from even considering
use of the 900 MHz B/ILT band. The second option, based as it is on the
assumption of little interference, may not provide sufficient
protection for a number of 900 MHz B/ILT licensees from powerful
commercial carrier such as Sprint Nextel, which in turn would impede
their (i.e., incumbent and ``traditional'' 900 MHz B/ILT licensees)
ability to operate effectively. Adversely affected entities under
either option could include small businesses. The Commission adopted
the third option as an appropriate balancing of burdens and achievement
of suitable interference protection. The Commission has acknowledged
that the interference protection standard adopted here is the most
appropriate for all parties for an interleaved spectral
[[Page 67800]]
environment such as the 900 MHz B/ILT band.
39. In the Commission's view, establishing a generally-applicable
interference protection standard for the 900 MHz B/ILT Pool will
effectively eliminate costs that all licensees, including small
entities, would incur to resolve an interference complaint. The
Commission believes that any up-front costs associated with initial
compliance with the amended rule outweigh the costs associated with
addressing and resolving an interference issue. Finally, the Commission
believes that among the alternative rules proposed in the NPRM, the one
it adopts in the R&O (i.e., holding all 900 MHz B/ILT Pool licensees to
the same interference protection rights and obligations, as opposed to
adopting two or more interference protection standards) is the least
onerous to, and most effective for, all parties, including small
entities, in that adopting a generally-applicable standard puts all
licensees in an equal position.
40. Regarding lifting the freeze placed on applications for new
authorizations for 900 MHz B/ILT licenses, with adoption of the R&O,
there is no compelling reason to maintain the freeze; the Commission's
action will only benefit small businesses, as it will allow them to
apply for new or additional 900 MHz B/ILT spectrum.
F. Report to Congress
41. The Commission will send a copy of the R&O, including the FRFA,
in a report to be sent to Congress pursuant to the Congressional Review
Act. In addition, the Commission will send a copy of the R&O, including
the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the
R&O and FRFA (or summaries thereof) will also be published in the
Federal Register.
IV. Ordering Clauses
42. Pursuant to sections 1, 4(i), 303, 309, 316, and 332 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303,
309, 316, and 332, the R&O is hereby adopted.
43. Part 90 of the Commission's rules is amended as set forth in
Appendix B of the R&O and that these rules shall be effective December
17, 2008.
44. The Petitions for Reconsideration filed by the Association of
American Railroads on December 17, 2004, by the National Association of
Manufacturers and MRFAC, Inc. on December 22, 2004, and by Exelon
Corporation on December 22, 2004, in WT Docket No. 02-55 et. al. are
granted to the extent described herein.
45. The freeze placed on applications for new 900 MHz Business/
Industrial Land Transportation licenses by Public Notice, September 17,
2004, is hereby lifted, at such time and under the conditions set forth
in the R&O.
46. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of the R&O, including
the Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 90
Communications common carriers.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 90 as follows:
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
0
1. The authority citation for part 90 continues to read as follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), 332(c)(7).
0
2. Section 90.672 is revised to read as follows:
Sec. 90.672 Unacceptable interference to non-cellular 800 MHz
licensees from 800 MHz cellular systems or Part 22 Cellular
Radiotelephone systems, and within the 900 MHz Business/Industrial Land
Transportation Pool.
(a) Definition. Except as provided in 47 CFR 90.617(k),
unacceptable interference to non-cellular licensees in the 800 MHz band
from 800 MHz cellular systems or part 22 of this chapter, Cellular
Radiotelephone systems and within the 900 MHz Business/Industrial Land
Transportation (B/ILT) Pool will be deemed to occur when the below
conditions are met:
(1) A transceiver at a site at which interference is encountered:
(i) Is in good repair and operating condition, and is receiving:
(A) A median desired signal strength of -104 dBm or higher if
operating in the 800 MHz band, or a median desired signal strength of -
88 dBm if operating in the 900 MHz B/ILT Pool, as measured at the R.F.
input of the receiver of a mobile unit; or
(B) A median desired signal strength of -101 dBm or higher if
operating in the 800 MHz band, or a median desired signal strength of -
85 dBm if operating in the 900 MHz B/ILT Pool, as measured at the R.F.
input of the receiver of a portable i.e., hand-held unit; and either
(ii) Is a voice transceiver:
(A) With manufacturer published performance specifications for the
receiver section of the transceiver equal to, or exceeding, the minimum
standards set out in paragraph (b) of this section, and;
(B) Receiving an undesired signal or signals which cause the
measured Carrier to Noise plus Interference (C/(I+N)) ratio of the
receiver section of said transceiver to be less than 20 dB if operating
in the 800 MHz band, or less than 17 dB if operating in the 900 MHz B/
ILT Pool, or;
(iii) Is a non-voice transceiver receiving an undesired signal or
signals which cause the measured bit error rate (BER) (or some
comparable specification) of the receiver section of said transceiver
to be more than the value reasonably designated by the manufacturer.
(2) Provided, however, that if the receiver section of the mobile
or portable voice transceiver does not conform to the standards set out
in paragraph (b) of this section, then that transceiver shall be deemed
subject to unacceptable interference only at sites where the median
desired signal satisfies the applicable threshold measured signal power
in paragraphs (a)(1)(i) of this section after an upward adjustment to
account for the difference in receiver section performance. The upward
adjustment shall be equal to the increase in the desired signal
required to restore the receiver section of the subject transceiver to
the 20 dB C/(I+N) ratio of paragraph (a)(1)(ii)(B) of this section. The
adjusted threshold levels shall then define the minimum measured signal
power(s) in lieu of paragraphs (a)(1)(i) of this section at which the
licensee using such non-compliant transceiver is entitled to
interference protection.
(b) Minimum Receiver Requirements. Voice transceivers capable of
operating in the 806-824 MHz portion of the 800 MHz band, or in the 900
MHz Business/Industrial Land Transportation Pool, shall have the
following minimum performance specifications in order for the system in
which such transceivers are used to claim entitlement to full
protection against unacceptable interference. (See paragraph (a)(2) of
this section.)
(1) Voice units intended for mobile use: 75 dB intermodulation
rejection ratio; 75 dB adjacent channel rejection ratio; -116 dBm
reference sensitivity.
(2) Voice units intended for portable use: 70 dB intermodulation
rejection
[[Page 67801]]
ratio; 70 dB adjacent channel rejection ratio; -116 dBm reference
sensitivity.
(3) Voice units intended for mobile or portable use in the 900 MHz
Business/Industrial Land Transportation Pool: 60 dB intermodulation
rejection ratio; 60 dB adjacent channel rejection ratio; -116 dBm
reference sensitivity.
[FR Doc. E8-27246 Filed 11-14-08; 8:45 am]
BILLING CODE 6712-01-P