[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32131-32138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15870]
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DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket No. 0906231085-91085-01]
Relocation of Federal Systems in the 1710-1755 MHz Frequency
Band: Review of the Initial Implementation of the Commercial Spectrum
Enhancement Act
AGENCY: National Telecommunications and Information Administration.
ACTION: Notice of Inquiry.
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SUMMARY: The U.S. Department of Commerce's National Telecommunications
and Information Administration (NTIA) seeks comment on the initial
implementation of the Commercial Spectrum Enhancement Act (CSEA).\1\
The CSEA, which was enacted in 2004, created an innovative funding
mechanism allowing Federal agencies to recover the costs of relocating
their radio systems from the proceeds of the auction of the radio
spectrum vacated. The first auction under the CSEA, that of the 1710-
1755 MHz band, concluded in 2006, providing new opportunities for
Advanced Wireless Services (AWS-1). Over two years into the relocation
of Federal systems from this band, NTIA requests information on what
implementation steps should be retained as best practices, what lessons
have been learned, and what, if any, improvements should be made in
future relocations under the CSEA.
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\1\ Title II, Pub. Law No. 108-494, 118 Stat. 3986, 47 U.S.C.
Sec. Sec. 309 (j) (3), 921, 923, 928 and note (annual report
requirement).
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DATE: Comments are requested on or before August 21, 2009, 2009.
ADDRESSES: Parties may mail written comments to Gary Patrick, Spectrum
Engineering and Analysis Division, Office of Spectrum Management,
National Telecommunications and Information Administration, U.S.
Department of Commerce, 1401 Constitution Avenue, N.W., Room 6725,
Washington, DC 20230, with copies to Gina Harrison, Esq., Office of
Spectrum Management, National Telecommunications and Information
Administration, U.S. Department of Commerce, 1401 Constitution Avenue,
N.W., Room 4099, Washington, DC 20230. Alternatively, comments may be
submitted in Microsoft Word format electronically to
[email protected]. Comments will be posted on NTIA's
website at http://www.ntia.doc.gov and regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gary Patrick, National
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue, N.W., Room 6725, Washington, DC
20230 or Gina Harrison, Esq., National Telecommunications and
Information Administration, U.S. Department of Commerce, 1401
Constitution Avenue, N.W., Room 4099, Washington, DC 20230; telephone
(202) 482-9132 or (202) 482-2695; or email: [email protected] or
[email protected].
SUPPLEMENTARY INFORMATION:
Overview
NTIA decided to reallocate the 1710-1755 MHz band to commercial use
in
[[Page 32132]]
1995.\2\ However, the decision could not be implemented until 2004,
when enactment of the CSEA provided a streamlined means to pay for the
relocation of Federal systems. The CSEA created the Spectrum Relocation
Fund (SRF).\3\ The SRF uses the proceeds from the commercial auction of
relinquished spectrum to reimburse Federal agencies required to vacate
the spectrum.
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\2\ NTIA, Spectrum Reallocation Final Report: Response to Title
IV-Omnibus Budget Reconciliation Act of 1993 (Feb. 1995), available
at http://www.ntia.doc.gov/openness/contents.html.
\3\ CSEA, Sec. 204, 118 Stat. 3994, 47 U.S.C. Sec. 928.
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The CSEA and the SRF it created help solve a recurrent spectrum
management dilemma, the problem of clearing incumbents from a portion
of the spectrum. Such transition issues can stymie efforts to bring
new, improved uses of spectrum into service.\4\ By enhancing the
efficiency of the Federal relocation process, the CSEA provides three
concurrent benefits. Commercial firms and consumers benefit from
expediting the process for freeing additional radio frequencies for new
or expanded services. Federal agencies benefit from the funds the SRF
provides for state-of-the-art systems they will use in new spectrum
locations. Finally, the CSEA assists in the Federal budget process by
providing that unused spectrum auction receipts revert to the
Treasury's general fund.
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\4\ ``800 MHz Transition May Drag on Until 2012, Some Say,'' TR
Daily (Feb. 17, 2009); Order, Improving Public Safety Communications
in the 800 MHz Band, WT Docket No. 02-55, FCC 08-253 (rel. Oct. 30,
2008), available at 2008 Lexis 7625; Order, Improving Public Safety
Communications in the 800 MHz Band, WT Docket No. 02-55, FCC 09-35
(Apr. 20, 2009), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-35A1.doc.
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On September 18, 2006, the Federal Communications Commission (FCC)
concluded the first auction conducted under the CSEA, the AWS-1
auction, including 1710-1755 MHz. The auction of the Federal spectrum
raised $6.85 billion out of $13.7 billion in net winning bids from
Federal and non-Federal auctioned spectrum combined. Opening the band
to commercial use will spur new wireless services.
In March 2007, the Office of Management and Budget (OMB), in
consultation with NTIA and based on Federal agency estimates of
relocation costs, transferred slightly over $1 billion from the SRF to
12 Federal agencies to relocate their systems out of the 1710-1755 MHz
band.\5\ This first implementation of the CSEA has been ongoing for
over two years. NTIA takes this opportunity to solicit public comment
on how the CSEA has functioned so far.
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\5\ There are 1,990 frequency assignments associated with the
Federal systems to be relocated from the 1710-1755 MHz band. The 12
relocating agencies are Department of Agriculture (USDA), Department
of Defense, Department of Energy, Federal Aviation Administration,
Department of Homeland Security, Department of Housing and Urban
Development, Department of the Interior, Department of Justice,
National Aeronautics and Space Administration, Department of the
Treasury, Tennessee Valley Authority, and United States Postal
Service. As of December 2008, Federal agencies had spent
$174,126,082 from the SRF. NTIA, 1710-1755 MHz Band Relocation:
Second Annual Progress Report (Mar. 2009) (``Second Annual
Relocation Report''), available at http://www.ntia.doc.gov/reports/Final2ndAnnualRelocation Report20090416.pdf.
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This Notice of Inquiry (NOI) first invites interested parties to
comment on the overall performance of the Federal relocation process.
The NOI then divides the issues among those arising before and after
the auction. Issues regarding the adequacy and transparency of data,
sufficiency of communications, guidance with respect to the relocation
process, and NTIA's role, arise both ``Pre-Auction'' and ``Post-
Auction.'' The Post-Auction section addresses a number of additional
issues, including ``early entry'' of licensees prior to a Federal
agency's scheduled date to vacate the band. In some cases, ``Pre-
Auction'' events may have had ``Post-Auction'' effects. In other cases,
``Post-Auction'' circumstances may shed light on the value of pre-
auction information and on the level of bidding. Thus, NTIA asks
commenters to analyze CSEA implementation from both cause-and-effect
and ``feedback'' perspectives.
Chronology
The CSEA requires the FCC to notify NTIA at least 18 months in
advance of an auction of eligible frequency bands.\6\ In December 2004,
the FCC notified NTIA that the auction of the 1710-1755 MHz band would
begin as early as June 2006.\7\
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\6\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g) (4)
(A).
\7\ Letter from Michael K. Powell, Chairman, Federal
Communications Commission to the Honorable Michael D. Gallagher,
Assistant Secretary for Communications and Information, and
Administrator, National Telecommunications and Information
Administration (Dec. 29, 2004).
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Under the CSEA, at least six months prior to the auction, NTIA, on
behalf of the Federal agencies and after review by OMB, must provide
the FCC and Congress the estimated costs and time lines for relocating
Federal agencies from affected spectrum.\8\ NTIA complied with these
requirements in December 2005.\9\
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\8\ CSEA, Sec. 202, 118 Stat. 2992-93, 47 U.S.C. Sec. 923 (g)
(4) (A) (5).
\9\ Public Notice, ``Commerce Releases Costs to Open Up Spectrum
for Advanced Wireless Broadband Services,'' available at http://www.ntia.doc.gov/ntiahome/press/2005/relo_12282005.htm. See
generally ``1710-1755 MHz Introduction,'' available at http://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm (updated list of
affected Federal frequency assignments and other data). For a
related discussion, see infra Section 2.a.
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In April 2006, prior to the auction, NTIA and the FCC published a
Joint Public Notice providing guidance to assist AWS-1 licensees and
Federal incumbents in the post-auction coordination process. One of the
purposes of that Joint Public Notice was to permit licensees access to
the band in advance of estimated relocation dates, subject to the
completion of successful coordination with the incumbents.\10\ The FCC
concluded the auction on September 18, 2006.\11\
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\10\ Federal Communications Commission and NTIA -- Coordination
Procedures in the 1710-1755 MHz Band, 21 FCC Rcd 4730 (Apr. 20,
2006) (``Joint Public Notice''). Access to a band by licensees prior
to relocation of incumbents is sometimes referred to as ``early
entry.''
\11\ ``Auction 66, Advanced Wireless Services (AWS-1),''
available at http://wireless.fcc.gov/auctions/default.htm?job=auction_factsheet&id=66.
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On February 16, 2007, OMB reported the cost and time estimates of
relocating incumbent systems in the 1710-1755 MHz band to Congress. The
CSEA provides that unless disapproved within 30 days, SRF funds shall
be available immediately.\12\ OMB consequently transferred funds from
the SRF to individual agencies, and calculated the start time for
relocation activities as the date the funds transferred to the agency's
account.\13\
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\12\ CSEA, Sec. 204, 118 Stat. 3995, 47 U.S.C. Sec. 928(d)
(2).
\13\ The CSEA provides that amounts transferred from the SRF to
a Federal agency be credited to the appropriations ``account'' of
the agency. Id. Sec. 928 (e) (C).
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The CSEA sets no firm date by which incumbent Federal agencies must
vacate spectrum. Pursuant to the CSEA, however, Federal agencies in the
1710-1755 MHz band estimated relocation times from one to six
years.\14\ The CSEA provides that eight years after deposit of auction
proceeds into the SRF, any remaining proceeds revert to the general
fund of the Treasury.\15\
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\14\ ``Report to Congress by the Office of Management and Budget
on Agency Plans for Spectrum Relocation Funds Pursuant to the
Commercial Spectrum Enhancement Act'' (Feb. 16, 2007) available at
http://www.ntia.doc.gov/reports/2007/OMBSpectrumRelocationCongressionalNotification_final.pdf.
\15\ CSEA, Sec. 204 (d) (3), 118 Stat. 3995, 47 U.S.C. Sec.
928 (d) (3). NTIA may terminate a frequency authorization if it
finds that an agency has unreasonably failed to comply with OMB-
approved time lines. CSEA, Sec. Sec. 202, 203(b), 118 Stat. 3993-
94, 47 U.S.C. Sec. Sec. 923 (g) (6), 309(j) (15) (D). See generally
Manual of Regulations and Procedures for Federal Radio Frequency
Management (``NTIA Manual''), Chapter O, Relocation of Federal
Government Radio Systems in Accordance with the Commercial Spectrum
Enhancement Act, available at http://www.ntia.doc.gov/osmhome/redbook/O.pdf.
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[[Page 32133]]
The time line below describes the principal stages in the 1710-1755
MHz band relocation.
Time Line -- Principal Stages in the 1710-1755 MHz Band Relocation
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PRE-AUCTION [mid] POST-AUCTION
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Proceeds Revert
AWS-1 to Treasury
NTIA Releases 1710- AUCTION OMB Report SRF Funds Early Entry Agency Estimated [horbar][horbar][rarr] General Funds
President Signs 1755 MHz Data FCC/NTIA CONCLUDES to Transferred [horbar][horbar][horbar][horbar][rarr] Relocation 8 Years from
CSEA Setting Auction JPN [verbar3] Congress to Agencies Completion [horbar][horbar][rarr] Deposit of
Reserve Price [verbar3] [verbar5] Auction Proceeds
into SRF
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[uarr] [uarr] [uarr] [uarr] [uarr] [uarr] ...................................... [uarr]
Dec Dec April Sept Feb Mar/April ...................................... Mar
2004 2005 2006 2006 2007 2007 ...................................... 2013
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REQUEST FOR COMMENT:
NTIA requests comment on the questions below to assist in
identifying lessons to be learned and other issues and suggestions
related to the implementation of the CSEA. These questions are not a
limitation on comments that may be submitted. When references are made
to studies, research, and other empirical data that are not widely
published, commenters are asked to provide copies of the referenced
material with the submitted comments.
1. Overall Performance
As of December 31, 2008, Federal agencies had relocated
approximately 933 or 47 percent of the 1,990 Federal frequency
assignments in the 1710-1755 MHz band.\16\ Also, as of December 31,
2008, licensees registered expenses with private sector clearinghouses
for relocating a total of approximately 765 or approximately 15 percent
of the approximately 5,000 non-Federal radio frequency links in the
2110-2155 MHz band, which was paired for auction with the 1710-1755 MHz
band.\17\ Non-Federal relocation typically occurs on a link-by-link
basis at the initiation of the AWS-1 licensee, when attempts to
``engineer around'' an incumbent microwave licensee fail. Apart from
moves made in response to requests for early entry, Federal agencies
relocate on a system-wide basis under established time frames and SRF
funding. NTIA asks parties to provide their perspectives on the overall
Federal relocation effort. NTIA also seeks comment on how the nature
and speed of the Federal relocation process compares with relocation of
private sector incumbents in the 2110-2155 MHz band.
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\16\ NTIA, 1710-1755 MHz Relocation and Schedule Summary,
available at http://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_20081209/1710_1755_Relo_Costs_2008_12.pdf. One fixed microwave
link and one land mobile link each comprise two Federal assignments.
Fixed transportable and aeronautical mobile links each constitute a
single assignment.
\17\ Report of the CTIA Spectrum Clearinghouse, LLC (Jan. 30,
2009); Semi-Annual Report of the PCIA -- The Wireless Infrastructure
Association on the Status of the PCIA AWS Clearinghouse (Jan. 30,
2009), both reports available at http://www.fcc.gov/cgb/ecfs/
(search Docket 02-353).
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2. Pre-Auction Issues
a. Adequacy of Data
The CSEA requires NTIA, at least six months prior to an auction,
``[t]o the extent practicable and consistent with national security
considerations'' to provide the FCC with relocation cost and time
estimates ``by the geographic location of the Federal entities'
facilities or systems and the frequency bands used by such facilities
or systems.''\18\ The cost data are used to set the reserve price for
the auction.\19\
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\18\ CSEA, Sec. 202, 118 Stat. 3992-93, 47 U.S.C. Sec. 923 (g)
(4) (A), (C).
\19\ CSEA, Sec. 203 (b), 118 Stat. 3994, 47 U.S.C. Sec. 309
(j) (15) (B). ``A `reserve price' is defined as an absolute minimum
price below which an auctioneer will not sell an object being
auctioned.'' Amendment of Part 1 of the Commission's Rules --
Competitive Bidding Procedures, Third Report and Order and Second
Further Notice of Proposed Rulemaking, 13 FCC Rcd 374, ] 140 (1997),
recon. denied, 15 FCC Rcd 15293 (2000).
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NTIA compiled cost and time estimates developed by the agencies in
compliance with this requirement, along with a list of affected Federal
assignments and other information. NTIA submitted these to the FCC and
to Congress in December 2005.\20\ NTIA also published these data on its
website and updated these published data before and after the auction.
NTIA continues to update the data periodically.\21\
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\20\ See supra note 9.
\21\ Id.
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In addition, prior to the auction, in April 2006, NTIA and the FCC
published a Joint Public Notice. The Joint Public Notice detailed the
early entry coordination process between AWS-1 licensees and Federal
incumbents.\22\ The early entry process has raised a number of concerns
from both Federal agencies and AWS-1 licensees.\23\ Was the Joint
Public Notice useful to AWS-1 auction bidders and, later, to licensees?
How might future such Notices be improved?
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\22\ Joint Public Notice, supra note 10.
\23\ See generally Commerce Spectrum Management Advisory
Committee (``CSMAC''): ``Recommendations for Improving the Process
for Identifying Spectrum for Future Reallocation or Sharing,'' at
12-15, 19 (Aug. 22, 2008) (``CSMAC Reallocation Report'') available
at http://www.ntia.doc.gov/advisory/spectrum/meeting_files/081508_csmac_WG3_Report_Revised_ (clean--final).pdf.
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NTIA seeks comment on whether the information provided prior to the
auction, both with respect to the Federal systems' relocation plans and
the process for early entry, was adequate.\24\ Commenters should
specify the type of additional information, if any, that would have
been helpful. What technical and operational information, if any, would
have better described the nature of systems to be relocated? Would
additional technical details, a glossary of spectrum management terms,
references to the NTIA Manual, or a description of the geographic area
authorized for each Federal system, have better apprised potential
bidders of the various types of operations in the
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band?\25\ Should Federal agencies be required to highlight particular
circumstances about which licensees might not otherwise know, such as
the fact that replacement equipment is under development and is not
commercially available, or the existence of nationwide, airborne, or
classified systems?
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\24\ Issues regarding the adequacy of information provided for
purposes of coordinating early entry and permitting service
initiation are discussed infra, Section 3.
\25\ Some AWS-1 licensees attempting early entry apparently were
unprepared for the challenges involved in relocating incumbent video
surveillance systems that use large bandwidths and are authorized
for nationwide operation. These characteristics significantly
complicate coordination.
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Under existing procedures, OMB reviews agency cost and time
estimates in consultation with NTIA before they are submitted to
Congress.\26\ Would future relocations benefit from more detailed
information regarding agency transition plans in addition to what is
currently incorporated in CSEA?
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\26\ For more explanation on this process, see the
``Chronology'' section above.
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Federal agencies have estimated time lines for vacating the
spectrum to which they are expected to adhere. Are details regarding
agency transition plans relevant primarily to an assessment of the
possibility of early entry? If so, to what extent would the disclosure
of such details prior to the auction affect auction bidding?
b. Transparency
i. Effect on bidding
Security requirements necessitated the classification of some
information regarding affected Federal systems. That information was
therefore withheld prior to the auction.\27\ Other data in NTIA files
related to many other Federal systems that have been treated previously
as ``Freedom of Information Act (FOIA) Exempt.''\28\ However, to
support the implementation of the CSEA, NTIA released these data prior
to the auction.\29\
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\27\ See generally Executive Order No. 12,958, as amended by
Executive Order No. 13,292 (2003); 68 F.R. 15,315 (Mar. 28, 2003)
(procedures for classifying, safeguarding and declassifying
information) (``Classification Order'').
\28\ 5 U.S.C. Sec. 552.
\29\ See generally ``1710-1755 MHz Data -- Prior to May 22,
2006,'' available at http://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_Prior%20to%2020060614/data_2005.htm.
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To what extent (if any) did a lack of access to ``classified''
information prior to the auction affect bidders' ability to participate
in the auction? Is there a way to ensure that commercial entities
understand whether sharing with classified systems will be possible
before Federal systems are fully moved? Can agencies, while avoiding
prohibited disclosure of classified information, still objectively
describe the risks that relocation time lines will not be met or that
early entry coordination will not be possible? Must commercial entities
have such an understanding in order to bid in the auction? Was the
release of FOIA-exempt information prior to the auction helpful?
ii. Qualitative assessment
Would bidders benefit from a qualitative assessment by NTIA of the
ease or difficulty of early entry? What would such an assessment
entail? What factors would need to be analyzed? What would make early
entry ``easy'' or ``difficult''? How would such an assessment affect
auction bidders' due diligence obligations?\30\
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\30\ Under the FCC due diligence obligations applicable to the
AWS-1 auction, potential bidders are solely responsible for
investigating the factors that may bear on the value of the
licenses. Applicants in the AWS-1 auction were cautioned that
operations had to be protected or relocated and that such
limitations could restrict the ability to use certain portions of
the spectrum or to provide service in certain geographic areas.
Public Notice, ``Auction of Advanced Wireless Services Scheduled for
June 29, 2006,'' AU Docket No. 06-30, FCC 06-47 (Apr. 12, 2006), ]]
37-47, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-47A1.pdf, modified on other grounds, Public Notice, ``Auction of
Advanced Wireless Services Licenses Rescheduled for August 9,
2006,'' AU Docket No. 06-30, FCC 06-71 (May 19, 2006).
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iii. Post-auction techniques
After the AWS-1 auction, Federal agencies formulated Non-Disclosure
Agreements (NDAs) and web-based capabilities for information
dissemination. These steps provided additional information to a limited
set of winning bidders/licensees in support of the early entry
coordination process.\31\ These tools were not available prior to the
auction. In some cases, they included information previously treated as
FOIA exempt. No classified material was provided via these additional
mechanisms. NTIA seeks comment on whether, subject to the appropriate
restrictions, disclosure of such unclassified FOIA-exempt information
could or should be made available prior to the auction.\32\ Could any
additional post-auction techniques to provide additional information be
used in advance of the auction? Parties commenting on this question
should detail the types of practices and methods, including legal
instruments and information technology-based mechanisms that would be
helpful here. To what extent do pre-auction competitive and anti-
collusion concerns hinder the use of such techniques?
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\31\ An NDA allowed an agency, prior to complete relocation, to
share additional technical material on its operations as well as
further information on sensitive operations, subject to certain
conditions. See infra Section 3.a.v.B.
\32\ See generally ``Memorandum for the Heads of Executive
Departments and Agencies: Freedom of Information Act'' (Jan. 21,
2009), available at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
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c. Communications
i. Information exchange
Prior to the AWS-1 auction, NTIA scheduled meetings with affected
Federal agencies, and initially consulted with wireless associations
regarding relocation efforts. Should NTIA expand its pre-auction
procedures in the future to encompass regular information exchanges
among potential bidders or wireless associations and affected agencies?
How can NTIA ensure that it reaches small and minority-owned businesses
that may benefit from purchasing auctioned spectrum? Would future
relocation efforts benefit from outreach to wireless associations prior
to the auction? Would such an effort help centralize, prioritize, and
expedite requests for early entry from forthcoming auction winners?\33\
Parties commenting on this question should specify the type of
information that should be exchanged, the appropriate parties and
groups to be included, and the venue and frequency for such exchanges.
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\33\ Issues related to the possible value of expanded
communications with licensees after the auction in connection with
early entry issues are discussed further infra Section 3.a.vi.
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ii. Standardization
For AWS-1, some agencies developed templates and forms expanding
the licensee data required in the Joint Public Notice and related FCC
rules.\34\ Were these templates useful without being overly burdensome?
What aspects of these forms should be retained? Are there ways in which
they can be improved? Should they remain ad hoc in nature or be
standardized across all agencies? Can such standardized forms be
developed prior to future auctions, to eliminate any lag in the early
entry coordination process?
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\34\ See infra Section 3.a.vi.B.
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The 1710-1755 MHz band incumbents are largely fixed microwave
operations. The Joint Public Notice and FCC rules require the
interference analysis methodology and criteria specified in
Telecommunications Industry Association (TIA) Telecommunications
Systems (TSB) Bulletin 10-F.\35\ That analysis applies to sharing
between fixed systems and between fixed and mobile systems. It was used
to assess potential interference
[[Page 32135]]
arising from licensee operations prior to the scheduled relocation
date. Did this analysis prove useful, and should it be used in future,
similar auctions? If not, what would help?
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\35\ See Joint Public Notice, supra note 10. See also 47 C.F.R.
Sec. 27.1134(b). The Joint Public Notice noted that the parties
could agree to an alternative method where this standard did not
apply.
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NTIA also seeks comment on how to address coordination between
licensees and incumbents in future relocations where established
sharing methodology or criteria does not exist. Would over-the-air
testing prior to the auction and prior to a determination of winning
bidders and their specific technical plans provide useful
information?\36\ What role, if any, should NTIA play in any such
testing?
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\36\ See infra Section 3.a.vi.B for a related discussion from a
post-auction perspective.
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iii. Guidance
Successful spectrum relocation under the CSEA necessitates that
diverse Federal and non-Federal entities harmonize procedures and
terminology. Is there a need for NTIA, the FCC, and OMB to provide
clarifying guidance to both licensees and agencies before the auction
beyond what has been provided in OMB Circular A-11 and OMB Memorandum
M-09-01, as well as through informal channels such as interagency
meetings?\37\ Would such guidance ensure that all affected parties
understand terminology and processes?
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\37\ Executive Office of the President, Office of Management and
Budget, Circular No. A-11, Preparation, Submission, and Execution of
the Budget, (June 2008 rev.), available at http://www.whitehouse.gov/omb/circulars/a11/current_year/a_11_2008.pdf;
Executive Office of the President, Office of Management and Budget,
Memorandum for Heads of Executive Departments and Agencies, M-09-01,
available at http://www.whitehouse.gov/omb/assets/omb/memoranda/fy2009/m09-01.pdf. See infra Section 3.b for a related discussion
from the post-auction perspective.
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Should NTIA, alone or in collaboration with other oversight
agencies, sponsor training for agency headquarters and field personnel?
Should NTIA prepare or collaborate with wireless industry associations
to provide training for relevant commercial entities? Such pre-auction
training might also clarify terminology, interpretation, and procedure.
Would such training improve the auction and early-entry processes?
Interested parties are asked to comment on appropriate sponsors and
topics for such training, and whether it should be mandatory.
d. Starting the Clock
Under the CSEA, the auction of Federal frequencies must raise at
least 110 percent of the estimated relocation costs of affected
agencies, or the auction will be canceled.\38\ Until that threshold is
reached, Federal agencies cannot be sure that their expenses will be
reimbursed. Thus, an agency undertaking initial tasks in advance of an
auction does so at the risk of not being recompensed. Such tasks may
include project management, technical studies, training, development of
software tools, or the hiring of additional personnel. Can Federal
agencies draw from private-sector experience and methodology to ensure
that their estimated costs and time lines are as accurate as possible,
and that they are prepared to tackle relocation in a timely manner? If
so, what should be done?
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\38\ CSEA, Sec. 203 (b) 118 Stat. 3994, 47 U.S.C. Sec. 309 (j)
(15) (B).
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e. NTIA's Role
NTIA regulates the Federal government's use of radio stations and
associated radio frequency spectrum.\39\ The CSEA confers oversight
powers on NTIA, in consultation with OMB, with respect to relocation
efforts.\40\ Prior to the AWS-1 auction, NTIA compiled estimated
relocation costs and time lines, as the CSEA requires, and consulted
with Federal agencies and the industry. NTIA published these data on
its website and continues to update this material periodically.\41\
Parties are asked to comment on NTIA's role in the pre-auction phase of
CSEA implementation. Is there additional or different information NTIA
should provide? In retrospect, was the information accurate? What could
be done to make the information more accurate or useful? Are post-
auction updates useful to licensees? To others?
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\39\ NTIA Manual, supra note 15, Sec. 1.1.
\40\ See supra note 15.
\41\ See generally ``1710-1755 MHz Introduction,'' available at
http://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm. See also
Section 2.a, supra.
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3. Post-Auction Issues
a. Early Entry
i. Background
The CSEA permits the grant of an FCC license to auction winners on
reallocated spectrum even if agencies continue to operate in the band,
provided there is no harmful interference to agency operations.\42\
Under the CSEA, ``eligible costs'' subject to SRF reimbursement may
include ``one-time costs of any modification of equipment'' reasonably
necessary to accommodate early entry.\43\ They also include costs
associated with ``accelerated replacement'' if necessary for ``timely
relocation of systems to a new frequency assignment.''\44\
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\42\ CSEA, Sec. 203 (b) (C), 118 Stat. 3994, 47 U.S.C.Sec. 309
(j) (15) (c). The Joint Public Notice established coordination
procedures for early entry. See ``Chronology,'' Section 2.a, and
note 10, supra.
\43\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g)
(3) (D).
\44\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g)
(3) (E).
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As permitted under the CSEA, several AWS-1 licensees sought to
begin operations before the estimated relocation dates established by
the agencies.\45\ Licensees particularly focused on major metropolitan
areas. Licensees expressed frustration at the delays they encountered
in coordinating with Federal agencies.\46\ On the other hand, it is
NTIA's understanding that Federal agencies found themselves overwhelmed
by industry requests and pressure to allow early entry. Has early entry
by licensees beginning to implement their systems proven important in
the successful implementation of the CSEA?
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\45\ Agencies estimated relocation times from one to six years.
See ``Chronology,'' supra.
\46\ CSMAC Reallocation Report, supra note 23, at 18-21.
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The Joint Public Notice provided a structured process for early
entry coordination. Parties are asked to comment on whether this
created a reasonable expectation of successful coordination. For
Federal agencies, the CSEA requires that they meet their estimated
relocation dates and coordinate in good faith for early entry prior to
their scheduled moves. The agencies do not believe that the CSEA
requires that they vacate the band prior to their estimated relocation
dates at the licensee's request, nor that the law guarantees successful
early entry coordination.\47\ In some cases, licensees negotiated with
Federal agencies in order to expedite band clearance. However, existing
Federal operations sometimes precluded early entry by the
licensees.\48\ Were Federal agencies reasonably diligent in their early
relocation efforts? How could they be more so? Did an expectation of
successful coordination form part of the basis for AWS-1 auction bids?
Should bidders expect to bear all the risks associated with early
entry? What options should be available to facilitate early entry?
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\47\ See generally id., at 19.
\48\ See generally id., at 18-21.
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ii. FCC Process for Non-Federal Incumbents
The FCC transitional rules applicable to non-Federal incumbents
differ from the CSEA procedures described above. Under the FCC rules,
AWS-1 licensees trigger the start of non-Federal incumbent relocation
efforts in the form
[[Page 32136]]
of mandatory negotiations.\49\ Private clearinghouses allow AWS-1
licensees to share commonly incurred reimbursement costs.\50\ An AWS-1
licensee may pay a premium to expedite a non-Federal incumbent's move.
If the payment, however, exceeds the clearinghouse ``cost-sharing
cap,'' other AWS-1 licensees also benefitting from the relocation would
only have to make payments on a pro-rata basis up to the cap. We seek
comment on how the Federal and non-Federal approaches to compensating
incumbents for relocation expenses compare.\51\
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\49\ This period is two years for fixed microwave incumbents and
three years for Broadband Radio Service (BRS) licensees. 47 C.F.R.
Sec. 101.69; 47 C.F.R. Sec. 1250. Fixed microwave services operate
in the 2110-2150 MHz band. BRS operates at 2150-2155 MHz. Parties
are free to negotiate voluntarily at any time. If the parties fail
to agree within the mandatory period, the AWS licensee may initiate
involuntary relocation procedures. The microwave relocation rules
sunset 10 years, and the BRS rules 15 years, after the first AWS-1
license is issued. At this point, an AWS-1 licensee starting up
service within interference range may require an incumbent to cease
operation. 47 C.F.R. Sec. 101.79(a)(1); 47 C.F.R. Sec. 27.1253.
\50\ AWS-1 licensees benefitting from another licensee's
relocation of an incumbent share in those expenses, pro-rata,
subject to a ``cap.'' The FCC established maximum amounts or
``caps'' on what the clearinghouse could pay. ``FAQs -- AWS
Licensees,'' available at http://ww.ctiaspectrumclearinghouse.org/ctia/aws-lic.jsp.
\51\ See also Section 1, supra.
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iii. Incentives
A. Market-based incentives
NTIA seeks comment on whether any of the market-based incentives
operative in the non-Federal clearance process could be applied to
expedite Federal agency relocation. The CSEA allows recovery of some
costs associated with interim changes accommodating early entry prior
to scheduled Federal relocation. These include one-time costs of
equipment modification necessary for early entry and costs associated
with accelerated replacement of systems and equipment.\52\ Are these
provisions sufficient?
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\52\ See Section 3.a.1, supra.
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B. Benchmarks and other non-economic approaches
The CSEA requires agencies to estimate relocation times. Were
relocation estimates for AWS-1 generally accurate? How might they be
improved in the future? NTIA seeks comment on whether standards,
expressed or implied, for assessing the reasonableness of these times,
can be drawn from the statute. How, as a practical matter, might NTIA
and OMB ensure that relocation time estimates provide that agencies
vacate the spectrum as expeditiously as possible?
The Commerce Spectrum Management Advisory Committee (CSMAC)
recommended the adoption of ``benchmarks'' or interim clearance
requirements by which gradually increasing percentages of a Federal
system would be vacated at certain specified dates.\53\ Should NTIA
establish mandatory ``benchmarks'' or other non-market-based incentives
for Federal agencies to use in vacating the spectrum? Would benchmarks
of this nature help move relocation forward or provide meaningful
certainty to bidders? What other benchmarks might be useful? Would
benchmarks contradict the CSEA procedures allowing agencies to estimate
their own relocation times, subject to OMB and NTIA review? Should any
such benchmarks be service-specific, taking account of the relative
ease or difficulty of relocating different types of operations? Parties
advocating for benchmarks should indicate how an entrant would use
them, point to analogous FCC or other precedent, and explain how
benchmarks have been used in the past. In particular, NTIA seeks input
on how benchmarks could be enforced in a meaningful way.
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\53\ CSMAC Reallocation Report, supra note 23 at 24-25.
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iv. Adequacy of Data
The Joint Public Notice detailed the coordination process for
licensees to use in early entry. This process, if successful, permits
AWS-1 licensees to access the 1710-1755 MHz band prior to the estimated
agency relocation dates. The Joint Public Notice referenced additional
material available on NTIA's website providing geographic location,
frequency bands, and other information.\54\ NTIA seeks comment on the
adequacy of this information for purposes of coordinating early entry
and permitting licensees to begin deployment.\55\ What information
might be added? What aspects of the coordination process established in
the Joint Public Notice succeeded and which might be improved?
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\54\ Joint Public Notice, supra note 10.
\55\ For a discussion of how adequacy of this information might
affect bidding, see supra Section 2.a.
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Parties are asked to detail any supplementary information that
would facilitate sharing of the spectrum prior to the agency's
scheduled relocation time. Once winning bidders are determined, should
commercial entities be required to exchange information regarding their
operational plans as part of the coordination process? Such information
might enable Federal agencies to reduce the additional agency data
needed to facilitate early entry. Parties are asked to comment on this
tentative view, and on any competitive or proprietary issues it may
raise. What licensee information, if any, should be shared, and if so,
at what point and by what mechanisms?
v. Transparency
A. Post-auction considerations
After a successful auction, the number of commercial entities
potentially interested in classified or otherwise restricted data on
incumbent Federal operations narrows to a group of successful bidders
with specific deployment plans and operational needs. The Federal
agencies developed distinct techniques for releasing additional
information to this smaller group. NTIA seeks comment on the validity
of this general distinction between pre-auction and post-auction
releasability of data. Does this distinction generally allow Federal
agencies to provide more data after the auction? Did these post-auction
techniques succeed, and how might they be improved? Should there be a
standardized process for releasing otherwise restricted data after
licenses are awarded?
B. Non-disclosure agreements
The Joint Public Notice provided that AWS-1 licensees could enter
into Non-Disclosure Agreements (NDAs) with Federal agencies after the
auction.\56\ An NDA allowed an agency, prior to complete relocation, to
share additional technical material on its operations as well as
further information on otherwise sensitive data. NTIA seeks comment on
whether this process should be retained. Can it be improved? If so,
how?
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\56\ Joint Public Notice, supra note 10, at 4.
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C. Other mechanisms
NTIA seeks comment on other possible mechanisms for exchanging
information on classified or otherwise restricted data. In lieu of
NDAs, some agencies developed web-based capabilities to facilitate
coordination with licensees.\57\ This allowed an assessment of
potential interference to Federal systems without revealing restricted
material. Were these techniques successful? Such web-based capabilities
require licensees to provide detailed, accurate data regarding their
operational plans. Provision of this data may permit an agency to
assess accurately and quickly the potential for interference to their
operations, and to
[[Page 32137]]
notify the licensee accordingly. Does this additional data demand raise
competitive and proprietary concerns for licensees? If so, how can such
concerns be lessened?
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\57\ The CSMAC has recommended the use of automated procedures
or other secure online capabilities for facilitating the sharing of
classified information. See CSMAC Reallocation Report, supra note
23, at 21-22.
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Parties addressing the disclosure of classified or otherwise
sensitive information should reference relevant Federal rules and
statutes.\58\ Commenters are encouraged to cite specific examples of
mechanisms that have either worked or failed.
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\58\ See, e.g., Classification Order, supra note 27; 5 U.S.C.
Sec. 552.
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vi. Communications
Both Federal agencies and licensees cite poor communications as a
fundamental cause of early entry issues. It is NTIA's understanding
that Federal agencies noted intense pressure, floods of requests, and
inaccurate data from licensees. Licensees, in turn, remark about
bureaucratic delays, lack of assigned agency staff, and divergent
agency practices.\59\ In general, how could communications related to
early entry activities be improved?
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\59\ See generally CSMAC Reallocation Report, supra note 23 at
18-21.
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A. Information exchange
NTIA has held monthly meetings among affected Federal agencies
since the AWS-1 auction. Should NTIA expand these to include regular
information exchanges among both licensees and agencies to address
problems and assess progress? How would such meetings affect licensees'
competitive concerns? Parties are asked to comment on what the
frequency and scope of such meetings would be.
Agencies claim that they were inundated with simultaneous early
entry requests.\60\ Would it help to require a date certain
notification to agencies of license award, company, and contact
information and the need for coordination? Should licensees be required
to prioritize when submitting large numbers of such requests at the
same time?
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\60\ See generally id., at 13, 19.
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Some agencies maintain that inadequate data from licensees for
coordination purposes hindered early deployment. To what extent did
this inadequacy proceed from competitive or proprietary concerns which
hampered full information exchange? What types of data -- for example,
contact information, implementation schedules, network characteristics,
technical parameters, duty cycles -- would be of assistance? How can
agencies correctly understand licensee early entry aims, while at the
same time protect competitive sensitivities? What types of information
or procedures might help?
B. Standardization and centralization
Parties are asked to comment on the value of automation in
improving transparency of communications.\61\ Web-based capabilities
and other Information Technology-based mechanisms may provide a way to
streamline the coordination process. Should Federal agencies be
encouraged to adopt these? Should OMB, the FCC, and NTIA create a
centralized Federal website to provide uniform guidance on process,
eligible costs, coordination, and other CSEA implementation matters?
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\61\ See also supra Section 3.a.v.C.
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The methodology and interference criteria specified in TIA TSB 10-F
provided a standard approach for assessing potential interference to
Federal fixed microwave systems.\62\ Some agencies also developed
templates and forms for licensee interactions, following agency-
specific testing and determination of particular interference
parameters. Such uniformity can help avoid time-consuming case-by-case
analyses. Is there a way to standardize interference parameters across
agencies for the same incumbent service? What if a widely accepted
standard, such as the TIA TSB 10-F, is not available for the service at
issue?
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\62\ See supra Section 2.c.ii.
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Would it be useful to permit testing as a means of verifying the
results of interference analyses in ``real world'' conditions? If so,
when should such testing be permitted?
b. Guidance
Licensees have noted the lack of agency personnel dedicated to
relocation matters, with the result that agency interactions may prove
dilatory or unproductive.\63\ Section 2.c.iii above addresses the need
for pre-auction training and guidance. Is there a need for ongoing and
standardized guidance as the relocation process progresses post-
auction? What sort of guidance would prove useful in answering specific
or novel implementation questions regarding early entry and related
matters as they occur?
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\63\ CSMAC Reallocation Report, supra note 23, at 13.
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c. NTIA's Role
Where necessary, NTIA facilitated coordination efforts between AWS-
1 licensees and Federal incumbents, and left the ultimate decision-
making to the parties themselves. On the non-Federal side, AWS-1
licensees are required to negotiate directly with individual
incumbents. Please comment regarding the adequacy of NTIA's efforts to
support coordination. The CSMAC has suggested that relocation
activities, including licensee interface, be centralized in NTIA.\64\
Do circumstances differ for direct licensee-Federal incumbent
interaction such that NTIA should increase its leadership role?
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\64\ Id., at 23.
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Throughout the 1710-1755 MHz relocation process, NTIA has served
multiple roles. Often, NTIA acts as a liaison for licensees seeking
additional information or accelerated clearance from agencies. NTIA
also coordinates with OMB and the FCC regarding appropriate policies
and procedures. NTIA provides guidance to the Federal agencies based on
its own expertise, and the advice of OMB and the FCC. In light of
NTIA's institutional expertise, the CSMAC recommended that NTIA assume
a greater leadership role in this process.\65\ NTIA seeks comment on
its role as a liaison between AWS-1 licensees and Federal agencies in
early entry matters. What additional responsibilities or roles should
NTIA assume in this process? What are the potential benefits or
pitfalls of such additional responsibility(ies)? With respect to
offering guidance on relocation policies and procedures, are there ways
in which NTIA might improve its efforts?\66\
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\65\ Id.
\66\ See supra Section 3.b.
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d. Other Funding and Administrative Issues
i. Long-term lease costs
Federal spectrum management policies encourage Federal agencies to
use commercial services whenever feasible.\67\ One Federal agency
replaced existing fixed microwave systems having an estimated 12-year
life with commercial telephony leases entailing recurring monthly
charges. However, in the 1710-1755 MHz relocation, payment of costs is
limited to one-time relocation costs.\68\ Does this limitation hinder
or delay the entry of commercial services in the band?\69\
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\67\ NTIA Manual, supra note 15, Sec. 2.3.3.
\68\ The SRF may pay ``relocation'' costs. These include costs
necessary to achieve ``comparable capability'' regardless if that
entails a new frequency assignment or use of an alternative
technology. CSEA, Sec. Sec. 204 (c), 202, 118 Stat. 3994, 3992, 47
U.S.C. Sec. Sec. 928, 923 (g) (3).
\69\ One alternative might be to use the eight-year CSEA
``sunset'' date. See ``Chronology,'' supra.
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ii. Spectrum-efficient technologies
The CSEA is based on payment of costs to relocate Federal systems
to new
[[Page 32138]]
spectrum. In the case of the 1710-1755 MHz band, this involved moving
Federal systems completely out of the allocated band. It is possible,
however, that technological advances or more spectrum-efficient
techniques, if implemented across all Federal agencies or entire
services, may permit increased consolidation or sharing among Federal
agencies. This, in turn, could result in release of additional spectrum
that could be auctioned for commercial services. Under this approach
the Federal users might still remain in the band. Could this approach
result in the potential for increased opportunities to accommodate new
commercial services? Are there other approaches to accommodating new
commercial services in bands used by the Federal government?
e. Urban versus Rural Relocation
Federal policies favor nationwide availability of advanced
services.\70\ Advanced wireless industry efforts to transition agencies
thus far, however, appear to have concentrated on populated areas. To
date, agencies in remote areas for the most part have been able to
accommodate buildouts through the coordination process.\71\ In the
future, should Federal/non-Federal sharing in remote regions substitute
for outright reallocation? How would continued Federal use hinder
commercial deployment in remote areas?
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\70\ See generally White House, Technology, ``Drive Economic
Growth and Solve National Problems by Deploying a 21st Century
Infrastructure,'' available at www.whitehouse.gov/issues/technology;
Press Release, NTIA, ``Vilsack, Copps and Wade Kick Off American
Recovery and Reinvestment Act's Broadband Initiative'' (Mar. 10,
2009) available at http://www.ntia.doc.gov/press/2009/BTOP_RFI_090310.pdf.
\71\ See generally Second Annual Relocation Report, supra note
5, at A-1 and n. 2 (USDA extensions of relocation time lines in
remote areas did not impact commercial deployment).
Dated: June 30, 2009.
Anna M. Gomez,
Deputy Assistant Secretary for Communications and Information.
[FR Doc. E9-15870 Filed 7-6-09; 8:45 am]
BILLING CODE 3510-60-S