[Federal Register Volume 63, Number 13 (Wednesday, January 21, 1998)]
[Proposed Rules]
[Pages 3075-3077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1393]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 101
[ET Docket No. 95-183; PP Docket No. 93-253; FCC 97-391]
Use of the 38.6-40.0 GHz Band for Fixed Microwave Service
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission adopts a Second Notice of Proposed Rule Making
regarding the use of the 38.6-40.0 GHz Band for fixed microwave
services. Specifically, the Commission seeks comment on the appropriate
unjust enrichment requirements for approving partitioning and
disaggregation arrangements involving a complete or partial transfer of
a license owned by a qualified small business to a non-small business
or a small business eligible for a smaller bidding credit.
DATES: Comments are due on or before February 20, 1998, and reply
comments are due on or before March 9, 1998.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Susan Magnotti, Public Safety and
Private Wireless Division, (202) 418-0871, or Christina Eads
Clearwater, Auctions Division, (202) 418-0660.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Second Notice of Proposed Rule Making in the Report and Order and
Second Notice of Proposed Rule Making, ET Docket No. 95-183, PP Docket
No. 93-253, FCC 97-391, adopted October 24, 1997, and released November
3, 1997. The complete text of this Report and Order and Second Notice
of Proposed Rule Making is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW., Washington, DC, and also may be purchased from the
Commission's copy contractor, International Transcription Service,
(202) 857-3800, 1231 20th Street, N.W., Washington, DC 20036.
Synopsis of the Second Notice of Proposed Rule Making in the Report and
Order and Second Notice of Proposed Rule Making
1. The Commission has concluded in the Report and Order that any 39
GHz licensee will be permitted to partition or disaggregate portions of
its authorization. In the Second Notice of Proposed Rule Making, the
Commission seeks comment regarding what restrictions to impose on
partitioning and/or disaggregation by licensees that have received
bidding credits when the buyer is a small business subject to less
favorable bidding credits or a non-small business not eligible for
bidding credits.
2. The Commission seeks comment on the type of unjust enrichment
requirements that should be placed as a condition for approval of
partitioning and disaggregation arrangements, e.g., an application for
a partial transfer of a license owned by a qualified small business to
a non-small business. The Commission tentatively concludes that these
unjust enrichment provisions would include payment of any bidding
credit that it may adopt for small business and would be applied on a
proportional basis. The Commission seeks comment on how such unjust
enrichment amounts should be calculated, especially in light of the
difficulty of devising a methodology or
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formula that will differentiate the relative market value of the
opportunities to provide service to various partitioned areas within a
geographic or market area. The Commission seeks comment on whether it
should consider the price paid by the partitionee in determining the
percentage of the outstanding principal balance to be repaid.
3. The Commission tentatively concludes that if it permits a small
business licensee to disaggregate to another qualified small business
that would not qualify for the same level of bidding credit as the
disaggregating licensee, the disaggregating licensee will be required
to repay a portion of the benefit it received. The Commission seeks
comment on how that amount should be calculated. The Commission seeks
comment on what provisions, if any, it should adopt to address the
situation of a small business licensee's disaggregation followed by
default in payment of a winning bid at auction.
Regulatory Flexibility Act/Initial Regulatory Flexibility Analysis
4. As required by section 603 of the Regulatory Flexibility Act, 5
U.S.C. 603, the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the expected impact on small entities of
the proposals suggested in the Second Notice of Proposed Rule Making.
Written public comments are requested on the IRFA. These comments must
be filed in accordance with the same filing deadlines as comments on
this Second Notice of Proposed Rule Making, but they must have a
separate and distinct heading designating them as responses to the
IRFA. The Secretary shall send a copy of this Second Notice of Proposed
Rule Making, including the IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration in accordance with paragraph 603(a)
of the Regulatory Flexibility Act. Public Law 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
5. Need for and Objectives of the Action. In the companion Report
and Order, the Commission expanded the Commission's geographic
partitioning provisions to all 39 GHz licensees and permitted spectrum
disaggregation. The Commission seeks further comment on the use of
partitioning and disaggregation by parties taking advantage of bidding
credits under the Commission's competitive bidding licensing rules, and
certain technical rules. The expansion of the partitioning and
disaggregation rules in the Report and Order to include all 39 GHz
licensees implements, in part, the requirements of section 257 of the
Telecommunications Act of 1996, which requires that the Commission
eliminate entry barriers into the telecommunications market for small
businesses. In the Second Notice of Proposed Rule Making, the
Commission tentatively concludes that unjust enrichment provisions
should apply when a licensee has benefitted from the small business
provisions (i.e., installment plans and bidding credits) in the auction
rules and then partitions a portion of the license area to another
entity that would not qualify for such benefits or would not qualify
for the same level of benefits. The Commission seeks comment on how
such unjust enrichment should be calculated under each scenario. The
Commission further seeks comments on what the respective obligations of
the participants in partitioning transfer should be.
6. Legal Basis. The proposed action is authorized under sections
4(i), 257, 303(r), and 309(j) of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 257, 303(r), and 309(j).
7. Description and Number of Small Entities Involved. The unjust
enrichment proposals with respect to partitioning and disaggregation
will affect all small businesses that avail themselves of partitioning
and/or disaggregation, including small businesses currently holding 39
GHz licenses who choose to partition and/or disaggregate and small
businesses who may acquire licenses through partitioning and/or
disaggregation. The Commission is required to estimate in its Final
Regulatory Flexibility Analysis the number of small entities to which a
rule will apply, provide a description of such entities, and assess the
impact of the rule on such entities.
8. To assist the Commission in this analysis, commenters are
requested to provide information regarding how many total entities,
existing and potential, would be affected by the proposed rules in the
Second Notice of Proposed Rule Making. In particular, the Commission
seeks estimates of how many such entities will be considered small
businesses. As explained in the Final Regulatory Flexibility Analysis
in the Report and Order, the Commission is utilizing the SBA definition
applicable to radiotelephone companies, i.e., an entity employing less
than 1,500 persons. The Commission seeks comment on whether this
definition is appropriate for 39 GHz licensees in this context.
Additionally, the Commission requests each commenter to identify
whether it is a ``small business'' under this definition. If a
commenter is a subsidiary of another entity, this information should be
provided for both the subsidiary and the parent corporation or entity.
9. Reporting, Recordkeeping, and Other Compliance Requirements. The
proposals in the Second Notice of Proposed Rule Making include the
possibility of imposing additional reporting and/or recordkeeping
requirements in connection with businesses obtaining licenses through
the partitioning and disaggregation rules. The information requirements
placed on businesses seeking to obtain licenses through partitioning or
disaggregation will be used to determine if the licensee is a
qualifying entity to obtain a partitioned license or disaggregated
spectrum. Those reporting requirements are stated in the companion
Final Regulatory Flexibility Act. Those reporting requirements also
will likely be used to ensure that a licensee is not unjustly enriched
by a partitioning or disaggregation arrangement.
10. Federal Rules that Overlap, Duplicate, or Conflict with These
Proposals. None.
11. Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives. In the Second Notice of
Proposed Rule Making, the Commission tentatively concludes that unjust
enrichment provisions should apply when a licensee has benefitted from
the small business provisions in the auctions rules and partitions a
portion of the license area to another entity that would not qualify
for such benefits. The alternative to applying the unjust enrichment
provisions would be to allow an entity who had benefitted from the
special bidding provisions for small businesses to become unjustly
enriched by partitioning a portion of their license area to parties
that do not qualify for such benefits.
12. Paperwork Reduction Act. This Second Notice of Proposed Rule
Making contains either a proposed or modified information collection.
As part of its continuing effort to reduce paperwork burdens, the
Commission invites the general public and the Office of Management and
Budget (OMB) to take this opportunity to comment on the information
collections contained in this Second Notice of Proposed Rule Making, as
required by the Paperwork Reduction Act of 1995, Pub. L. 104-13. Public
and agency comments are due at the same time as other comments on this
Second Notice of Proposed Rule Making; OMB comments are due March 23,
1998. Comments should address: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the
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Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
13. Ex Parte Rules. This is a non-restricted notice and comment
rulemaking proceeding. Ex parte presentations are permitted except
during the Sunshine Agenda period, provided they are disclosed as
provided in the Commission's rules. See generally 47 CFR 1.1201,
1.1203, 1.1206(a).
14. Comment Filing Procedures. Pursuant to applicable procedures
set forth in Secs. 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415 and 1.419, interested parties may file comments on or before
February 20, 1998, and reply comments on or before March 9, 1998. To
file formally in this proceeding, interested parties must file an
original plus four copies of all comments, reply comments, and
supporting comments. If commenters want each Commissioner to receive a
personal copy of their comments, they must file an original plus nine
copies. Comments and reply comments should be sent to: the Office of
the Secretary, Federal Communications Commission, Washington, D.C.
20554. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference Center
(Room 239), 1919 M Street, N.W., Washington, D.C. 20554.
15. Authority for issuance of this Report and Order and Second
Notice of Proposed Rule Making, is contained in Secs. 4(i), 257,
303(r), and 309(j) of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 257, 303(r), and 309(j).
List of Subjects in 47 CFR 101
Communications common carriers, Radio, Reporting and recordkeeping
requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-1393 Filed 1-20-98; 8:45 am]
BILLING CODE 6712-01-P
